IC-NRLF 


SB    EE    Ib3 


CO 


UNIVERSITY  OF  PENNSYLVANIA 


PROCEDURE  IN  STATE  LEGISLATURES 


BY 

H.  W.  DODDS 


A  THESIS 

PRESENTED  TO  THE  FACULTY  OF  THE  GRADUATE  SCHOOL  IN 

PARTIAL  FULFILLMENT  OF  THE  REQUIREMENTS  FOR 

THE  DEGREE  OF  DOCTOR  OF  PHILOSOPHY 


PHILADELPHIA 

THE  AMERICAN  ACADEMY  OF  POLITICAL 

AND   SOCIAL    SCIENCE 

I9l8 


Copyright,  1918,  by 

THE  AMERICAN  ACADEMY  OF  POLITICAL  AND  SOCIAL  SCIENCE 
All  rights  reserved 


CONTENTS 

Page 

FOREWORD v 

Hon.  John  A.  Lapp 

CHAPTER  I— THE  LEGISLATURE'S  INHERENT  POWERS  IN 

MATTERS  OF  PROCEDURE 1 

Inherent  Powers  Defined 2 

The  Power  to  Determine  the  Qualifications  of  Members  is  Exclusive 3 

The  Power  to  Punish  for  Contempt  is  a  Prerogative 4 

The  Attitude  of  the  New  York  Courts 5 

Parliamentary  Procedure  not  Subject  to  Judicial  Review 6 

Journals  Presumed  Favorable  to  the  Act 7 

Constitutional  Provisions  Sometimes  Directory 9 

Parol  Evidence  Inadmissible  to  Overthrow  Journals 11 

The  Validity  of  Parliamentary  Rules 12 

The  Authority  of  Statutes  Regulating  Procedure 13 

Legislative  Employes 15 

CHAPTER  II— THE   ORGANIZATION    OF   THE   HOUSES 20 

The  Make-up  of  the  Roll 20 

Contested  Elections 21 

Selection  of  Employes 23 

CHAPTER  III— INTRODUCTION   OF  BILLS '. .  26 

Early  Methods  of  Introduction 26 

Personal  Responsibility  of  Members  for  Introducing  Measures 29 

Restrictions  upon  the  Free  Introduction  of  Measures ,31 

Present-Day  Methods  of  Introduction 32 

CHAPTER  IV— COMMITTEES 36 

Early  Function  of  Standing  Committees 36 

Selection  of  Committees 37 

Number  and  Size  of  Committees 39 

Reference  of  Bills 42 

Committee  Meetings 44 

Committee  Schedules '. 44 

Committee  Records 47 

Joint  Committees 49 

Conference  Committees 51 

Discharge  of  Committees 52 

Steering  Committees 56 

[in] 


38X535 


iv  Contents 

CHAPTER  V— PASSAGE  OF  BILLS 63 

Quorum 63 

Printing  of  Bills 64 

Readings 65 

Debate 69 

The  Committee  of  the  Whole 70 

Control  over  Debate — Obstruction 72 

Suspension  of  the  Rules 75 

Amendments 79 

Roll  Calls  on  Final  Passage 84 

Counting  a  Quorum 86 

Engrossment  and  Enrollment 87 

CHAPTER  VI— LEGISLATIVE  LEADERSHIP 91 

The  Calendar 91 

Closing  Days  of  the  Session 97 

Legislative  Leadership 100 

The  Speaker 100 

The  Floor  Leader 102 

Executive  Leadership 104 

Legislative  Records 107 

Index..                                                  ..•..                                                            .  110 


FOREWORD 


This  study  is  a  hopeful  beginning  of  researches  which  will  help 
greatly  to  solve  some  of  the  problems  of  legislative  procedure. 
Such  studies  are  necessary  preliminaries  to  the  popularization  of  the 
problems  as  well  as  the  solution  and  nothing  is  more  needed  in 
governmental  research  than  the  basic  facts  underlying  the  legisla- 
tive process,  for  it  is  undeniable  that  the  legislative  machinery  does 
not  function  properly  in  the  states  or  in  the  Congress  of  the  United 
States. 

Mr.  Dodds  has  done  well  to  go  below  the  surface  of  things  and 
tell  how  the  legisUtures  actually  do  some  of  their  important  work. 
In  doing  so  he  has  been  plowing  virgin  soil  a  good  deal  of  the  time 
and  the  way  has  not  been  smooth.  He  has  had  to  find  his  facts  in 
obscure  sources  and  to  weigh  and  sift  a  vast  amount  of  scattered 
material. 

There  are  plenty  of  articles  and  books  descriptive  of  legislative 
bodies  but  there  is  a  dearth  of  descriptions  of  the  way  legislatures 
are  organized  and  how  they  work.  Everyone  intimately  in  touch 
with  a  legislative  body  knows  that  there  is  a  vast  difference  between 
theory  and  practice.  Mere  analyses  of  constitutional  forms  and 
limitations  tell  very  little;  in  fact  they  mislead  grossly.  Take,  for 
example,  the  provision  that  every  bill  shall  be  read  in  full  on  three 
separate  days.  If  that  were  followed  literally,  the  legislature 
would  spend  its  entire  time  listening  to  the  reading  of  bills.  The 
actual  practice  is  not  followed  anywhere  and,  of  course,  could  not 
be,  yet  every  general  treatise  on  legislatures  treats  it  as  a  part  of  the 
actual  practice  of  legislatures.  Many  constitutional  forms  are 
merely  paper  provisions  and  that  fact  lends  importance  to  Mr. 
Dodds'  study.  New  light  is  thrown  on  many  subjects  which  writers 
have  heretofore  been  content  to  pass  over  in  general  terms  because 
of  the  difficulties  of  detailed  research. 

One  of  the  most  interesting  phases  of  Mr.  Dodds'  work  is  his 
discussion  of  the  powers  of  a  legislative  body  and  of  the  separate 
houses.  Strangely  enough,  no  one  has  considered  this  subject 
sufficiently  important  for  careful  study  and  yet  in  1913  in  one  of 

[v] 


vi  Foreword 

our  leading  states  all  of  the  principal  officers  and  some  members  of 
the  legislature  were  indicted  for  violating  a  law  which  attempted  to 
fix  the  number  of  employes.  The  court  rightly  held  that  the  houses 
of  a  legislature  could  not  be  bound  by  such  a  law  because  it  inter- 
fered with  their  inalienable  powers.  Laws  in  violation  of  this  prin- 
ciple are  on  the  statute  books  of  several  states. 

Another  subject  which  has  not  had  the  attention  which  it 
deserves  is  treated  in  this  study,  namely,  the  validity  of  the  enrolled 
bill.  There  is  some  confusion  of  legal  authority  on  this  point,  a 
majority  holding, that  the  enrolled  bill  cannot  be  impeached,  while 
a  few  would  allow  the  journals  as  evidence.  Either  conclusion  leads 
to  absurdities.  If  the  journals  or  parol  evidence  cannot  be  used 
to  impeach  an  act,  then  acts  which  never  passed  either  house  may 
become  laws  by  the  signature  of  the  presiding  officers  and  the 
governor,  as  actually  happened  in  Indiana  in  1913,  through  the 
trickery  of  some  unknown  person.  The  doctrine  of  the  validity 
of  the  enrolled  bill  would  make  such  an  act  valid  in  spite  of  the 
plain  evidence  that  it  never  passed.  On  the  other  hand,  if  the 
journals  are  to  be  used  as  evidence,  the  law  may  be  made  to  depend 
upon  the  accuracy  of  the  work  of  legislative  clerks,  who  are  seldom 
known  for  their  efficiency.  Instead  of  taking  the  act  from  the 
statute  books  as  it  stands  each  act  would  have  to  be  traced  back 
through  the  journals.  The  doctrine  that  " ignorance  of  the  law 
excuses  no  one"  would  truly  become  a  joke  under  such  circum- 
stances. 

It  is  just  such  questions  as  these  that  most  need  analysis  and 
careful  treatment.  The  physiology  of  legislatures  should  be  studied 
rather  than  their  anatomy.  The  following  study  tells  more  about 
how  the  houses  are  organized,  how- the  committees  work  and  how  a 
bill  travels  through  the  process  than  has  heretofore  been  brought 
together,  which  material  is  compacted  into  a  few  pages.  Scarcely 
a  superfluous  word  is  used  to  describe  important  processes.  The 
study  will  be  of  great  basic  value  in  the  inevitable  reform  of  legis- 
lative processes. 

JOHN  A.  LAPP. 


CHAPTER  I 

THE  LEGISLATURE'S  INHERENT  POWERS  IN  MATTERS 
OF  PROCEDURE 

The  methods  and  forms  by  which  legislative  business  is  carried 
on  are  notoriously  lax.  Rules  designed  to  protect  the  rights  of  the 
minority,  to  secure  due  deliberation  and  publicity  for  all  legislative 
acts,  and  to  introduce  order  into  the  performance  of  legislative  duties 
are  known  to  be  frequently  disregarded.  Judgments  of  presiding 
officers  in  direct  contravention  of  the  rules  have  been  sustained  by 
majority  vote,  and  legislative  houses,  in  flagrant  violation  of  their 
own  law,  have  overruled  correct  decisions.  To  such  loose  and 
chaotic  practice  was  due,  in  no  small  degree,  the  growing  popular 
distrust  which  so  boldly  marked  the  nineteenth  century  attitude 
towards  our  state  legislatures.  Successive  constitutions  reflect  the 
decline  of  confidence  in  representative  assemblies  by  defining  and 
restricting  in  great  detail  the  powers  which  the  legislature  may  exer- 
cise. Relief  from  the  prevailing  extravagance  and  recklessness  was 
sought  by  designating  the  forms  and  procedure  by  which  the  legis- 
lature must  act.  Thus  the  newer  constitutions,  in  an  effort  to  in- 
sure order  and  deliberation  in  the  work  of  the  legislatures,  or  at  least 
to  prevent  repetitions  of  certain  gross  frauds,  came  to  include 
specific  provisions  governing  parliamentary  practice.  Today  pro- 
visions that  a  bill  must  be  read  three  times  on  separate  days  are 
common,  and  numerous  regulations  concerning  introduction  of  bills, 
signing  by  presiding  officers,  functions  of  committees,  et  cetera, 
occur  in  many  organic  laws. 

Occasionally  the  legislature  itself,  in  the  spirit  of  repentance, 
elevated  a  rule  of  procedure  to  the  plane  of  statute  law.  Thus  the 
requirement  that  local  or  private  bills  must  be  published  in  the.  dis- 
trict which  they  affect  found  a  place  on  the  statute  books.  In  like 
manner,  improved  methods  of  handling  contested  election  cases 
were  attempted  by  acts  delegating  disposition  of  them  to  the  courts. 
The  purpose  of  course  was  to  establish  by  legislative  action  a  few 
fundamental  parliamentary  rules  to  control  the  whims  of  the  legis- 
lature without  the  observance  of  which  no  action  could  be  deemed 
legal. 

2  [1] 


2  Procedure  in  State  Legislatures 

INHERENT  POWERS  DEFINED 

But  when  the  aid  of  the  courts  was  summoned  to  apply  these 
provisions,  whether  embodied  in  the  constitution  or  occurring 
merely  in  the  statute  law,  the  doctrine  of  inherent  powers  and  priv- 
ileges of  legislative  bodies  was  seen  to  be  involved.  Historically 
this  is  a  very  ancient  doctrine.  It  takes  its  source  in  the  long  strug- 
gle in  England  between  King  and  Parliament,  when  the  matter  of 
gaining  and  securing  recognition  of  a  privilege  was  a  tremendously 
important  thing.  A  privilege  once  established,  the  Commons  were 
at  that  point  secure  from  royal  interference;  either  directly  by 
agents  of  the  king  or  through  the  processes  of  the  courts.  But  it  is 
one  of  the  curious  developments  of  history  that  a  principle,  em- 
ployed to  protect  the  representatives  of  the  people  against  coercion 
and  intimidation  by  an  autocratic  power,  should  today  remove  them 
from  all  legal  liability  so  far  as  the  forms  by  which  they  conduct 
themselves  are  concerned. 

Legal  theory  recognizes  that  each  department  of  government 
possesses  certain  inherent  powers  of  which  it  cannot  be  deprived  by 
a  coordinate  branch.  This  is  the  doctrine  of  inherent  powers. 
Speaking  generally,  these  powers  are  such  that  if  the  free  exercise 
of  them  were  obstructed  the  effective  discharge  of  the  duties  of  the 
constituent  branch  would  be  seriously  impaired.  It  is  generally 
accepted  that  no  explicit  constitutional  provision  is  necessary  to  the 
exercise  of  these  powers  and  privileges  upon  the  part  of  the  legisla- 
ture, but  that  they  are  implied  in  the  general  grant  of  legislative 
power  and  are  necessary  if  that  body  is  to  fulfill  its  function.  The 
broadest  expression  given  to  such  rights  describes  them  as  inherent 
in  the  law-making  branch  and  capable  of  being  ascertained  primarily 
by  an  examination  of  common  parliamentary  law.  They  are  not  de- 
rived from  express  provisions  in  the  constitutions.  On  the  contrary, 
they  arise  from  the  very  nature  of  a  legislative  body.  Indeed  the 
constitution  is  not  a  grant  but  a  restriction  upon  this  power.1  In 

1  Ex  parte  McCarthy,  29  Cal.  395.  This  follows  closely  the  English  theory  of 
lex  et  consuetude  Parliamenti  as  outside  the  common  law.  See  Blackstone's 
"Commentaries,"  Bk.  I,  c.  2;  "But  the  maxims  on  which  they  (the  two  houses 
of  Parliament)  proceed,  together  with  the  method  of  proceeding,  rest  entirely  in 
the  breast  of  parliament  itself  and  are  not  defined  or  stated  by  any  particular 
stated  law."  Coke  also,  4  Inst.  15,  "Judges  ought  not  to  give  any  opinion  of  a 
matter  of  privilege,  because  it  is  not  to  be  decided  by  the  common  laws  but  secun- 


Inherent  Powers  in  Matters  of  Procedure  3 

the  light  of  this  principle,  provisions  which  read,  "Each  house  shall 
have  all  other  powers  necessary  for  a  branch  of  a  legislature  of  a  free 
state,"  can  add  nothing  to  prerogatives  already  enjoyed.2  It  is 
worth  while  to  examine  the  nature  of  these  inherent  rights,  which 
can  be  restricted  only  by  the  constitution  itself  and  in  the  exercise  of 
which  a  legislature  cannot  bind  itself  any  more  than  an  individual 
can  bargain  away  his  freedom. 

THE  POWER  TO  DETERMINE  THE  QUALIFICATIONS  OF  MEMBERS  is 

EXCLUSIVE 

The  right  to  judge  of  the  elections  and  qualifications  of  its  own 
members  is  expressly  conferred  upon  each  house  by  the  constitutions 
of  forty-six  states.3  Originally  developed  by  the  House  of  Commons 
as  a  protection  against  encroachment  by  the  king,  it  would  exist 
today,  in  the  absence  of  any  constitutional  grant,  as  an  inherent 
power  "  necessary  to  the  legislature  to  enable  it  to  perform  its  high 
function."  "It  is  the  power  of  self-protection."4  The  right  being 
exclusive,  the  legislature  cannot  refer  ultimate  decision  to  any  other 
tribunal.  The  courts  can  enter  no  judgment.  Their  decision  is 
merely  advisory,  if  indeed  they  can  act  in  the  matter  at  all.5 
Neither  will  the  courts  inquire  the  reason  for  the  expulsion  of  a  mem- 
ber, no  matter  how  arbitrary  and  unfair  the  action  of  the  legisla- 
ture.6 In  no  case  will  the  courts  examine  the  returns  to  see  who  was 

dum  leges  et  consuetudinem  Parliamenti. "  American  courts  have  declared  that  in 
general  the  two  houses  are  organized  and  governed  in  accordance  with  the  rec- 
ognized principles  of  parliamentary  law.  Ex  parte  Screws,  49  Ala.  57;  State  v. 
Rogers,  56  N.  J.  L.  480.  The  accepted  opinion  in  Congress  is  that  until  rules  have 
been  adopted  each  Congress  operates  under  what  Speaker  Reed  termed  common 
parliamentary  law,  in  which  the  practice  of  the  House  constitutes  a  principal  part. 
5  Hinds  6759-6763. 

2  Such  provisions  occur  in  thirteen  state  constitutions. 

8  See  Index-Digest  of  State  Constitutions,  prepared  for  New  York  Constitu- 
tutional  Convention,  1915,  pp.  885-6  and  925-6. 

4  Hiss  v.  Bartlett,  69  Mass.  473;  French  v.  State,  146  Cal.  604. 

6  In  re  Contested  Election  of  Senator,  111  Pa.  St.  235.  In  State  v.  Gilmorc, 
20  Kan.  551,  an  act  empowering  a  court  to  vacate  a  seat  of  a  member  who  upon 
trial  was  found  to  have  been  intoxicated  in  a  public  place  was  declared  void.  The 
legislature's  exclusive  power  to  judge  of  the  qualifications  of  its  members  is  not 
exhausted  by  admission  to  a  seat.  In  Dinan  v.  Swig,  112  N.  E.  91  (Mass.  1916) 
the  power  of  a  court  to  render  even  an  advisory  opinion  is  denied.  Also  in  State 
v.  District  Court,  50  Mont.  134  (1914). 

8  Hiss  v.  Bartlett,  supra;  French  v.  State,  supra;  Auditor-General  v.  Board,  51 
N.  W.  483  (Mich.). 


4  Procedure  in  State  Legislatures 

legally  elected,  the  legislature  being  the  sole  judge  of  all  questions  of 
law  or  fact  involved.7  The  courts  will  exercise  no  supervision  over 
justices  of  the  peace  authorized  by  statute  to  take  testimony  in  con- 
tested elections  of  members  of  the  legislature.  The  powers  of  these 
officials  when  so  acting  are  not  judiciary,  but  rather  in  the  nature  of 
the  work  of  a  committee  of  the  house.8 

Since  the  courts  refuse  to  review  in  any  manner  the  action  of 
the  legislature  in  admitting  or  expelling  members,  the  binding  force 
of  statutes  defining  the  methods  of  contesting  elections  rests  solely 
in  the  will  of  the  house.  This  is  in  harmony  with  the  view  adopted 
by  Congress  that  such  an  act  is  only  a  wholesome  rule  not  to  be  de- 
parted from  without  cause,  and  that  a  petition  failing  to  proceed 
according  to  law  is  not  without  remedy.9  Such  laws  must  be  viewed 
as  convenient  aids  to  the  legislative  house  and  cannot  exist  as  a 
check  upon  the  legislature's  power  to  adopt  any  other  procedure 
at  will.  In  fact  it  has  been  recently  declared  that  a  statute  at- 
tempting to  define  the  procedure  to  be  followed  would  be  void.10 

THE  POWER  TO  PUNISH  FOR  CONTEMPT  is  A  PREROGATIVE 

A  second  inherent  right  is  the  power  of  a  house  to  punish  con- 
tempts of  its  authority.  Following  English  precedents11  our  courts 
at  first  held  that  this  was  a  general  power  necessary  to  the  exercise 
of  legislative  functions  and  the  adjudication  of  the  house  was  suffi- 
cient to  establish  the  fact  of  contempt.12  This  exclusive  j  urisdiction, 
however,  was  restricted  in  the  opinion,  rendered  in  the  famous  Eng- 
lish case  of  Stockdale  v.  Hansard,  which  declared  that,  although  no 
court  could  relieve  a  person  committed  for  contempt  from  punish- 
ment lawfully  inflicted,  the  question  of  the  jurisdiction  of  the  house 
is  always  open  to  inquiry.13  The  United  States  Supreme  Court 
finally  accepted  this  view  and  in  the  case  of  Kilburn  v.  Thompson 

70'Donnel  v.  Judges,  40  La.  Ann.  598;  People  v.  Mahaney,  13  Mich.  481; 
Bingam  v.  Jewett,  66  N.  H.  382;  Dalto  v.  State,  43  Ohio  St.  652;  Corhett  v.  Naylor, 
25  R.  I.  520. 

•  State  v.  Peers,  33  Minn.  81. 

9  Case  of  Williamson  v.  Sickles,  1  Hinds  776. 

10  Dinan  v.  Swig,  supra. 

11  See  May,  "Practice  and  Usages  of  Parliament,"  10  ed.  p.  131  et  seq. 

12  Anderson  v.  Dunn,  6  Wheat.  204,  followed  in  a  series  of  cases  until  Kilburn 
v.  Thompson,  103  U.  S.  168.     See  also  Coffin  v.  Coffin,  4  Mass.  35. 

13  9  Ad.  &  E.  1,  and  11  Ad.  &  E.  253. 


Inherent  Powers  in  Matters  of  Procedure  5 

inquired  into  the  jurisdiction  of  the  House  of  Representatives,  deny- 
ing at  the  same  time  that  the  right  to  punish  for  contempt  could 
derive  any  authority  from  English  precedents,  since  from  time  im- 
memorial Parliament  has  been  a  High  Court  of  Judicature.  The 
Court  asserted  that,  if  the  House  of  Representatives  is  to  punish 
for  contumacy  as  a  witness,  the  testimony  must  be  required  in  a 
matter  in  which  the  House  can  properly  proceed.  In  the  case  in 
question  the  investigation  was  found  to  be  of  a  judicial  nature  and 
in  excess  of  the  power  of  the  House.  The  warrant  for  the  prisoner's 
arrest  was  therefore  void. 

The  state  courts  were  quick  to  adopt  the  reasoning  in  Kilburn 
v.  Thompson  and  to  inquire  into  the  lawfulness  of  legislative  con- 
tempt. The  principle  followed  was  that  the  houses  of  the  legisla- 
ture are  free  to  punish  recusant  witnesses  only  if  the  information 
sought  is  in  the  aid  of  legislation,  otherwise  such  punishment  is  an 
invasion  of  the  judicial  department.14  But  the  doctrine  that  the 
power  to  command  respect  is  obviously  so  essential  to  the  enlighten- 
ment and  guidance  of  the  legislature  that  it  has  always  been  exer- 
cised without  question  remained  unshaken.  The  constitution  does 
not  create  the  power,  but  fixes  and  limits  the  mode  and  duration  of 
punishment  for  disobedience.15 

THE  ATTITUDE  OF  THE  NEW  YORK  COURTS 

The  New  York  courts  of  late  years  have  seemed  unwilling  to 
concede  to  the  legislature  an  inherent  or  even  a  common  law  right 
to  punish  for  contempt.  The  constitution  of  this  state,  contrary  to 
prevailing  form,  does  not  authorize  in  specific  terms  a  single  house 
of  the  legislature  to  punish  for  contempt  or  to  expel  members,  and 
is  likewise  silent  as  to  a  member's  privilege  from  arrest,  although 
elsewhere  these  prerogatives  are  generally  held  to  inhere  without 
express  constitutional  grant.  Since  1830  these  powers  have  been 

14  In  re  Chapman,  166  U.  S.  661;  In  re  Gunn,  50  Kan.  155;  Burnham  v. 
Morissey,  80  Mass.  226;  People  v.  Keeler,  99  N.  Y.  463;  Matter  of  Barnes,  204 
N.  Y.  108;  People  v.  Webb,  5  N.  Y.  Supp.  855;  Ex  parte  Parker,  74  S.  C.  466; 
Sullivan  v.  Hill,  79  S.  E.  670  (W.  Va.);  Ex  parte  Watters,  144  S.  W.  531  (Tex.). 

"  Ex  parte  McCarthy,  29  Cal.  395;  Lowe  v.  Summers,  69  Mo.  App.  637;  State 
v.  Matthews,  37  N.  H.  450;  Ex  parte  Dalton,  44  Ohio  St.  142;  Ex  parte  Parker, 
supra;  Sullivan  v.  Hitt,  supra;  The  power  to  punish  may  be  delegated  to  com- 
mittees by  statute.  Ex  parte  Parker,  and  Sullivan  v.  Hill;  also  strong  dissenting 
opinion,  In  re  Davis,  58  Kan.  368. 


6  Procedure  in  State  Legislatures 

provided  for  by  general  statute,  and  the  offenses  enumerated  in 
the  acts  have  been  declared  to  be  the  only  ones  which  either  house 
is  authorized  to  punish  as  contempts  and  to  take  the  place  of  the 
numerous  offenses  treated  by  Parliament  as  such.  The  statute 
conferring  the  power,  judicial  in  nature,  is  not  void,  however,  as 
invading  the  judiciary  department  since  it  is  necessary  and  appro- 
priate to  legislative  action.16  More  recently  the  Code  of  Civil 
Procedure17  has  given  over  the  duty  of  punishing  recusant  witnesses 
to  the  courts,  and  the  Court  of  Appeals  holds  that  in  so  doing  the 
legislature  demonstrated  its  lack  of  an  inherent  power  to  punish  for 
contempt  in  disobedience  to  its  process.18  This  is  a  serious  inroad 
upon  the  prevailing  theory  of  prerogative,  if  indeed  the  concept  is 
not  completely  shattered.  The  legislature  is  considered  to  have 
acoAuired  through  its  general  legislative  power  the  privileges  not 
specifically  conferred  by  the  constitution.  They  are  not  exclusive 
or  inalienable  and  are  defined  by  statute  law.19 

PARLIAMENTARY  PROCEDURE  NOT  SUBJECT  TO  JUDICIAL  REVIEW 

With  a  view  towards  maintaining  the  effective  independence  of 
the  coordinate  departments  of  government  in  the  discharge  of  their 
appropriate  duties,  the  courts  have  generally  permitted  the  legisla- 
tures themselves  to  interpret  constitutional  provisions  concerning 
methods  of  procedure.  For  example,  the  courts  of  several  states 
will  not  admit  evidence  to  impeach  the  validity  of  *an  act  on  the 
ground  that  some  constitutional  requirement  as  to  the  manner  of 
passage  has  not  been  observed.  If  the  act  is  regularly  enrolled, 
authenticated  by  the  presiding  officers  of  both  houses,  and  signed 
by  the  governor,  the  evidence  is  conclusive  that  all  constitutional 

16  People  v.  Keekr,  supra;  See  also  People  v.  Webb,  supra.    The  legislature 
has  only  such  powers  to  punish  as  have  been  conferred  upon  it  by  statute. 

17  H  854  to  U  856. 

18  Matter  of  Barnes,  204  N.  Y.  108. 

19  In  a  recent  Texas  case  the  court  held  that  in  accordance  with  the  doctrine 
of  the  separation  of  powers  the  legislature's  right  to  punish  for  contempt  was  de- 
rived solely  from  the  constitutional  grant,  Art.  Ill,  sec.  15,  which  authorizes  each 
house  to  punish  persons  not  members  for  disrespectful  or  disorderly  conduct  in  its 
presence,  or  for  obstructing  any  of  its  proceedings.     Failure  to  answer  the  ques- 
tions of  a  committee  does  not  constitute  obstruction  of  legislative  proceeding  and 
the  legislature  was  not  competent  to  adjudge  for  contempt  for  so  doing.     Ex  parte 
Walters,  144  S.  W.  531.     This  denies  to  the  legislature  the  right  to  punish  indirect 
contempts. 


Inherent  Powers  in  Matters  of  Procedure  7 

provisions  governing  procedure  have  been  fulfilled,  and  it  cannot  be 
impeached  by  the  journals.  The  theory  adopted  is  that  the  legis- 
lators are  bound  by  their  oaths  to  support  the  constitutional  mode 
of  procedure  and,  although  disregard  constitutes  breach  of  duty,  the 
presumption  must  always  be  that  the  coordinate  branch  has  fulfilled 
its  duty.20  Any  other  interpretation  leads  to  uncertainty  as  to  what 
is  law  and  ends  logically  in  the  power  to  impugn  the  journals.21 

This  follows  the  English  precedent,  established  in  1617,  that 
the  Journals  of  Parliament  are  not  records 'but  "  remembrances  for 
the  form  of  proceeding  to  the  record,"  and  cannot  weaken  or  con- 
trol the  statute,  which  is  a  record  to  be  controlled  only  by  itself. 
"  When  the  act  is  passed  the  Journal  is  expired!"22  It  is  interesting 
to  notice  the  circumstances  which  surrounded  this  decision.  The 
case  involved  a  statute  passed  in  the  reign  of  Henry  VIII.  As  no 
journal  was  kept  for  the  Commons  until  the  time  of  Edward  VI, 
the  journal  of  the  House  of  Lords  was  pressed  to  show  from  entries 
thereon  that  the  bill  came  up  from  the  lower  house  with  an  amend- 
ment which  was  a  prerequisite  to  the  latter's  approval  of  the  meas- 
ure. The  bill,  as  passed  by  the  Lords  and  enrolled  under  the  Great 
Seal,  contained  this  amendment  cancelled  and  suit  was  brought  to 
invalidate  the  act,  but  without  success.  In  the  absence  of  any 
record  from  the  lower  house  it  is  not  strange  that  the  act  as  delivered 
to  the  Chancery  should  be  held  to  be  the  only  true  record,  yet  many 
of  our  state  courts  still  follow  this  precedent  by  refusing  to  admit 
the  journals  to  impeach  a  properly  certified  act.23 

JOURNALS  PRESUMED  FAVORABLE  TO  THE  ACT 

Another  view,  which  has  been  expressed  by  the  courts  of  more 
than  half  the  states,  is  that  the  properly  certified  act  is  only  prima 

20  Kilgore  v.  McKee,  85  Pa.  St.  401. 

21  State  v.  Jones,  6  Wash.  452.     In  Field  v.  Clark  (143  U.  S.  649)  the  Supreme 
Court  considered  that  it  was  advisable  to  make  the  certificate  of  the  presiding 
officers  the  evidence  instead  of  journals  kept  by  minor  officials,  who  were  liable  to 
make  mistakes. 

22  Rex  v.  Arundel,  Hobart  109. 

23  Yolo  County  v.  Colgan,  132  Cal.  265;  Eld  v.  Gorham,  20  Conn.  16;  Miller  v. 
Oclwein,  55  Iowa  706;  Schutt  v.  State,  173  Ind.  689;  Owensboro  v.  Barclay,  102  Ky. 
16;  Swann  v.  Buck,  40  Miss.  268;  State  v.  Beck,  25  Nev.  68;  Power  v.  Kitching, 
10  N.  D.  254;   Mason  v.  Cranbury  Twp.,  68  N.  J.  L.  149;   Narregang  v.  Brown 
County,  14  S.  D.  357.     It  is  believed  that  the  above  comprise  those  states  holding 
th«  enrolled  act  conclusive. 


8  Procedure  in  State  Legislatures 

fade  evidence  of  its  validity  and  that  recourse  may  be  taken  to  the 
journals  to  see  if  all  constitutional  provisions  relative  to  procedure 
have  been  observed.  The  presumption,  of  course,  is  always  favor- 
able fco  the  act,  but  this  may  be  overthrown  by  affirmative  evidence 
on  the  journals.  But  it  must  appear  affirmatively  and  beyond  all 
doubt  that  the  act  was  not  properly  passed.  If  the  journals  are 
silent  or  ambiguous  it  must  be  presumed  that  the  constitution  was 
followed.  For  example,  if  the  journals  show  that  a  bill  failed  to 
receive  a  constitutional  majority  on  final  passage  and  the  words  "so 
the  bill  failed  to  pass"  were  entered,  the  bill  never  became  law, 
although  this  could  not  be  presumed  from  mere  silence.24  In  like 
manner  the  courts  will  not  consider  the  fact  that  notice  of  intro- 
duction of  a  local  or  private  act  was  omitted  although  the  constitu- 
tion may  require  it  to  be  published.  The  advertisement  of  such 
notice  in  the  constitutional  manner  will  be  presumed  and  the  jour- 
nals need  not  show  it.25 

Although  it  usually  cannot  be  assumed  that  constitutional  re- 
quirements were  omitted  because  a  record  of  every  step  stipulated 

24  Currie  v.  Southern  Pacific  Co.,  21  Ore.  571.  The  following  cases  illustrate 
the  points  involved:  C.  B.  &  Q.  v.  Smythe,  103  Fed.  376;  Gibson  v.  Anderson,  131 
Fed.  376.  In  re  Duncan,  139  U.  S.  449  (Federal  Courts  adopt  adjudication  of 
state  courts).  For  acts  of  Congress  the  enrolled  bill  is  sufficient,  Field  v.  Clark, 
143  U.  S.  649.  Ex  parle  Howard  &  Co.,  119  Ala.  484;  Andrews  v.  People,  33  Colo. 
193;  State  v.  Francis,  26  Kan.  724;  Attorney-General  v.  Rice,  64  Mich.  385;  State 
v.  Field,  119  Mo.  593;  Colburn  v.  Mcdonald,  72  Neb.  431;  Territory  v.  O'Conner, 
37  N.  W.  765;  State  v.  Smith,  44  Ohio  St.  348;  Hiskell  v.  Knox  Co.,  177  S.  W. 
(Tenn.  1915)  483.  Of  course  if  the  constitution  stipulates  entry  in  the  journal 
the  journal  must  show  the  entry. 

26  Vann  v.  State,  65  Fla.  160;  Critcher  v.  Crawford,  105  Ga.  108;  Bray  v. 
Williams,  137  N.  C.  387.  In  order  to  make  the  requirement  of  notice  effective 
Alabama  included  in  her  constitution,  adopted  in  1901,  a  clause  which  prescribes 
that  the  evidence  of  the  publication  of  notice  shall  be  spread  on  the  journals  and 
directs  the  courts  to  pronounce  void  any  private  or  local  law  for  which  the  journals 
do  not  show  that  notice  was  published.  Numerous  acts  have  thus  been  nullified. 
See  Kumpfe  v.  Irwin,  140  Ala.  460. 

But  acts  have  been  held  invalid  because  the  requirement  of  notice  was  not 
observed,  Ashbrook  v.  Shaub,  60  S.  W.  (Mo.)  1085;  Attorney-General  v.  Tuckerton, 
67  N.  J.  L.  120;  Chalfant  v.  Edwards,  173  Pa.  St.  246;  here  the  fact  of  no  notice 
was  admitted  by  both  parties  and  the  court  accepted  their  admission.  In  New 
Jersey  this  was  held  insufficient  to  overthrow  the  prima  facie  evidence  of  the  act 
(Freeholders  v.  Stevenson,  46  N.  J.  L.  173).  The  fact  of  no  notice  is  hard  to  show 
if  the  courts  accept  the  journals  as  final. 


Inherent  Powers  in  Matters  of  Procedure  9 

in  the  constitution  does  not  appear  in  the  journals,26  the  situation 
changes  when  certain  facts  are  obliged  to  appear  thereon.  Such 
facts  can  be  shown  in  no  other  way  and  their  failure  to  appear  on 
the  journals  will  invalidate  the  act,  and  no  presumption  arises  from 
the  enrollment  of  the  act.27 

The  trend  of  recent  decisions  has  been  towards  permitting  re- 
sort to  the  journals  to  ascertain  if  the  constitutional  forms  of  proce- 
dure were  observed,  and  away  from  the  English  view  that  the  act  is 
the  only  record.  Indeed  the  courts  of  two  states  have  gone  so  far 
as  to  demand  that  the  journals  must  show  affirmatively  every  step 
prescribed  by  the  constitution.  Failure  to  do  so  is  conclusive  evi- 
dence that  the  step  was  not  taken,  regardless  of  whether  or  not  the 
constitution  explicitly  orders  entry  thereof.  Therefore,  the  express 
provision  of  the  constitution  for  the  entry  of  the  ayes  and  noes 
on  the  journal  does  not  imply  that  other  steps  need  not  be  taken, 
the  conclusion  being  that  if  facts  are  not  set  forth  they  did  not 
transpire.28 

This  would  seem  the  sensible  view  if  effect  is  to  be  given  to  ar- 
ticles in  the  constitution  designed  to  cure  flagrant  evils  in  parliamen- 
tary practice.  If  recourse  is  had  to  the  journals  they  should  be 
considered  as  a  true  and  complete  account  of  the  legislative  body, 
and  omission  therefrom  of  a  step  made  mandatory  by  the  constitu- 
tion should  be  conclusive  evidence  that  it  was  not  taken.  Journals 
might  then  be  kept  with  greater  care,  and  this  in  turn  would  pro- 
mote closer  adherence  to  constitutional  methods. 

CONSTITUTIONAL  PROVISIONS  SOMETIMES  DIRECTORY 

The  view  sometimes  taken  by  the  courts  that  constitutional 
directions  concerning  procedure  are  directory  merely  and  not  man- 

26  Presumed  that  ayes  and  nays  were  taken  on  final  passage  of  a  bill  although 
journal  was  silent,  State  v.  Rogers,  22  Ore.  348.     The  same  when  journals  fail  to 
show  three  readings  required  by  the  constitution.    See  44  Cent.  Digest;  Statutes, 
par.  17. 

27  Ex  parte  Howard,  119  Ala.  484;  State  v.  Swan,  51  Pac.  (Wyo.)  209.     Cotton 
Mills  v.  Waxhaw,  130  N.  C.  293. 

28  Cohn  v.  Kingsley,  5  Idaho  416.     In  Brown  v.  Collector,  5  Idaho  589,  the 
journal  did  not  show  that  the  bill  had  been  read  by  sections  as  the  constitution 
required.     See  also  Spangler  v.  Jacoby,  14  111.  297.     In  Ryan  v.  Lynch,  68  111.  160, 
the  journal  did  not  show  that  the  bill  had  been  read  on  three  different  days. 
People  v.  Bowman,  247  111.  276;    Neiberger  v.  McCullough,  253  111.  312.     The 
journal  must  show  that  the  bill  and  amendments  were  printed. 


10  Procedure  in  State  Legislatures 

datory  gives  the  legislatures  still  greater  freedom  in  their  applica- 
tion. This  doctrine  is  borrowed  from  the  principle  that,  when  the 
provisions  for  carrying  out  a  statute  were  not  designed  to  operate 
as  a  condition  to  its  performance  and  do  not  to  the  judicial  mind 
appear  essential,  they  will  be  regarded  as  directory.  In  such  cases 
the  proceedings  under  the  act  will  be  held  valid,  although  the  com- 
mand of  the  act  as  to  form  and  time  has  not  been  strictly  observed ; 
the  time  and  manner  not  being  the  essence  of  the  thing  required  to 
be  done.29 

In  many  cases  this  is  the  reasonable  attitude  towards  consti- 
tutional prescriptions,  since  the  execution  of  the  legislative  function 
is  more  important  than  the  method.  Accordingly  it  is  usual  to 
hold  that  an  incorrect  enacting  clause  will  not  invalidate  the  law,  the 
form  set  forth  in  the  constitution  being  considered  directory.30 
Constitutional  provisions  that  bills  shall  be  enacted  into  clauses  and 
sections  are  viewed  in  the  same  light.31  In  situations  such  as  these 
the  will  of  the  framers  of  the  constitution  may  be  accomplished  with- 
out strict  adherence  to  constitutional  standards,  for  the  questions 
are  purely  ones  of  form,  but  when  methods  of  procedure  are  involved 
the  situation  is  more  serious.  Requirements  such  as  that  a  bill 
shall  be  read  on  three  separate  days  exist  to  insure  deliberation  and 
to  check  flagrant  evils.  As  Cooley32  well  points  out,  the  interpre- 
tation of  constitutional  prescriptions  which  renders  them  merely 
directory  is  charged  with  dangerous  elements.  The  fundamental  law 
does  not  generally  undertake  to  prescribe  rules  of  proceeding  except 
where  such  rules  are  looked  upon  as  essential  to  the  thing  to  be  done. 

Sections  which  require  that  every  bill  shall  have  three  readings 
on  separate  days  have  sometimes  been  held  mandatory,  sometimes 
merely  directory,33  and  the  same  is  true  of  the  provision  that  all 

29  Potter's,  "Dwarris  on  Statutes,"  p.  222  and  p.  226  note.     See  also  People 
v.  Spruance,  8  Colo.  307. 

30  McPherson  v.  Leonard,  29  Md.  377;    Cape  Giraudeau  v.  Riley,  52  Mo. 
424;  Swann  v.  Buck,  40  Miss.  368;  State  v.  Burrow,  119  Tenn.  376;  But  in  State 
v.  Rogers,  10  Nevada  250,  the  omission  of  one  word  from  the  enacting  clause 
rendered  the  act  void.    Tne  Court  was  moved  to  this  extreme  view  by  Cooley 
on  "Constitutional  Limitations,"  7  ed.,  p.  214. 

31  County  Commissioners  v.  Meckens,  50  Md.  28. 

32  Cooley,  "Constitutional Limitations,"  7  ed.,  pp.  213-214. 

83  Mandatory,  Ryan  v.  Lynch,  68  111.  160;  Board  of  Supervisors   v.  Heenan, 
2  Minn.  330;  In  the  latter  case  the  court  considered  that  since  the  constitution 


Inherent  Powers  in  Matters  of  Procedure  11 

bills  shall  be  signed  by  the  presiding  officers  and  the  fact  entered  in 
the  journals.34  Although  clauses  requiring  that  bills  have  but  one 
subject  clearly  expressed  in  the  title  are  generally  mandatory, 
a  few  decisions  have  declared  them  to  be  merely  directory.35 

The  rule  has  been  applied  that  the  constitutional  prescription 
is  directory  where  there  is  no  clause  declaring  the  act  void  if  the 
direction  be  not  followed,36  whereas  if  the  reading  is  that  "no  bill 
shall  become  a  law"  unless  a  certain  procedure  is  followed  the  pro- 
vision is  mandatory.37  However  this  rule  is  not  general,  for  affirma- 
tive clauses  have  often  been  held  mandatory,  largely  under  the  in- 
fluence of  the  attitude  taken  by  Cooley.  From  the  viewpoint  of 
legislative  procedure  the  question  is  not  of  prime  importance  as  long 
as  courts  refuse  to  invalidate  an  act  other  than  by  affirmative  state- 
ments on  the  journal. 

PAROL  EVIDENCE  INADMISSIBLE  TO  OVERTHROW  JOURNALS 

The  courts  have  consistently  refused  to  admit  parol  evidence 
to  overthrow  the  favorable  presumption  towards  an  act,  the  journal 
being  the  only  evidence  competent  to  impeach  it.38  The  integrity 
of  the  journal  cannot  be  assailed  for  fraud  or  deceit.  When  ap- 
proved by  the  house  it  becomes  the  act  of  the  house  itself  and  to  in- 
quire into  its  veracity  would  be  to  invade  a  coordinate  department 

provided  that  the  necessity  for  three  readings  on  separate  days  could  only  be 
suspended  by  a  two-thirds  vote,  it  was  demonstrated  that  the  framers  of  the 
fundamental  law  attached  great  importance  to  the  manner  of  passing  an  act. 
Directory,  Miller  and  Gibson  v.  State,  3  Ohio  St.  475. 

34  Mandatory,  State  v.  Glenn,  18  Nev.  34;  State  v.  Keisewetter,  45  Ohio  St. 
254;  Burrit  v.  Commissioners,  120  111.  322.  Directory,  In  re  Roberts,  5  Colo. 
525;  Leavenworth  v.  Higgiribotham,  17  Kan.  62  (otherwise  the  presiding  officers 
would  have  the  veto  power);  State  v.  Mason,  155  Mo.  486;  Telegraph  Co.  v. 
Nashville,  llSTeirn.l. 

86  Washington  v.  Page,  4  Cal.  388;  In  re  Boston  Mining  Co.,  51  Cal.  624; 
Ohio  v.  Corrington,  29  Ohio  St.  102. 

36  People  v.  Supervisors,  27  Barb.  (N.  Y.)  584;  People  v.  Supervisors  of  Chen- 
ango,  8  N.  Y.  317;  McClinch  v.  Sturgis,  72  Maine  288;  State  v.  Meade,  71  Mo.  266. 

17  Larkin  v.  Simmons,  155  Ala.  273;  Cummins  v.  Gaston,  109  S.  W.  (Tex.) 
476. 

"  Ames  v.  U.  P.  Rwy.  Co.,  64  Fed.  165;  State  v.  Brody,  148  Ala.  381 ;  People  v. 
Hatch,  33  111.  9;  Brays  v.  Williams,  137  N.  C.  387;  Auditor-General  v.  Board,  51 
N.  W.  483  (Mich.). 


12  Procedure  in  State  Legislatures 

of  government.     If  the  journal  contains  errors  the  house  itself  is  the 
only  tribunal  competent  to  correct  them.39 

This  freedom  from  judicial  inquisition  is  granted  the  legislature 
as  a  right  inherent  in  an  independent  department  of  government. 
Where  the  constitution  has  imposed  restrictions  upon  it  as  to  the 
methods  by  which  it  shall  act,  it  claims  the  prerogative  of  apply- 
ing these  restrictions.  If,  during  the  passage  of  an  act,  the  consti- 
tution has  been  violated,  attention  is  called  to  the  breach  by  raising 
a  point  of  order  on  the  floor.  Thus  a  point  of  order  that  notice 
had  not  been  given  for  a  private  bill  as  ordered  by  the  constitution 
is  fatal  if  sustained.40  Presiding  officers  refuse  to  rule  on  the  con- 
stitutionality of  a  measure  unless  a  point  of  order  is  involved.  It 
is  then  their  duty  to  do  so.41  The  Missouri  Constitution  (Section 
37,  Article  III)  empowers  five  members  of  either  house  to  protest 
that  the  constitution  has  been  violated  in  the  passage  of  a  bill, 
which  protest  is  to  be  noted  on  the  journal.  The  courts  hold,  there- 
fore, that  in  the  absence  of  such  protest  it  will  be  presumed  that  the 
legislature  was  not  remiss.42  But  as  the  same  courts  have  ruled 
that  to  nullify  an  act  the  journals  must  show  affirmatively  and  be- 
yond all  doubt  that  the  constitution  was  not  followed,  it  is  difficult 
to  see  how  a  parliamentary  objection  would  have  much  weight.43 

THE  VALIDITY  OF  PARLIAMENTARY  RULES 

The  constitutions  of  all  the  states  except  Georgia  empower  their 
legislatures  to  make  their  x>wn  rules  of  procedure,  although  noth- 
ing is  clearer  than  that  this  prerogative  would  inhere  without 
express  constitutional  grant.  From  this  it  follows  that  no  court 
will  review  any  infraction  of  the  legislative  rules,  and  if  the  houses 
choose  to  ignore  them  completely  the  validity  of  their  acts  is  in  no 

"  State  v.  Smith,  44  Ohio  St.  348.  Here  a  spurious  and  false  journal  accom- 
plished the  validity  of  an  act;  protests  and  affidavits  spread  on  the  journal  at  a 
later  date  were  of  no  effect.  See  also  Taylor  v.  Beckham,  108  Ky.  278,  where  it 
was  averred  that  in  an  election  contest  following  the  murder  of  Goebel  the  journals 
were  fraudulently  made  out  pursuant  to  a  conspiracy.  See  further  Wise  v.  Briggs, 
79Va.269. 

40  Penna.  House  Journal,  1876,  p.  790  et  passim. 

41  For  a  complete  discussion  see  Mass.  Senate  Journal,  1869,  p.  341. 
«  McCafferty  v.  Mason,  155  Mo.  486. 

«  State  v.  Field,  119  Mo.  593. 


Inherent  Powers  in  Matters  of  Procedure  13 

way  affected.44  A  house  may  adopt  any  procedure  it  sees  fit,  and 
change  it  at  any  time  without  notice,  but  it  cannot  bind  itself  by 
establishing  unchangeable  rules.45  In  this  respect  joint  rules  are 
no  more  binding  than  the  rules  of  a  single  house,  their  observance 
likewise  resting  upon  the  discretion  of  the  legislature.46 

The  constitution  of  Minnesota  contains  a  clause  obviously  de- 
signed to  increase  the  authority  of  the  rules  of  the  two  houses. 
Bills,  passed  in  conformity  to  the  rules  of  each  house  and  to  the 
joint  rules,  are  to  be  presented  to  the  governor.  (Section  21, 
Article  IV.)  In  an  early  case  the  Supreme  Court  of  the  State  dis- 
cussed the  probability  that  by  this  recognition  tihe  rules  were  de- 
signed to  be  placed  on  the  same  footing  with  the  rules  incorporated 
in  the  constitution.47  Nevertheless,  no  court  has  nor  will  any  court 
be  apt  to  test  the  possibilities  of  this  provision  because  of  the  doc- 
trine that  no  act  can  be  impeached  except  by  affirmative  evidence 
on  the  journal.48 

THE  AUTHORITY  OF  STATUTES  REGULATING  PROCEDURE 

Brief  reference  has  already  been  made  to  frequent  attempts  to 
secure  a  more  refined  procedure  by  incorporating  certain  rules  in  the 
statute  law,  the  thought  being  that  once  a  rule  has  received  the'  ap- 
proval of  the  governor  in  the  form  of  a  legislative  act,  its  observance 
rests  no  longer  upon  the  whim  of  the  legislature.  Following  the 
passage  of  such  laws,  the  question  arose  whether  or  not  a  binding 
authority  higher  than  a  mere  parliamentary  rule  had  been  attained 
in  any  manner  which  the  courts  were  bound  to  respect.  The  gen- 
eral verdict  has  been  that  these  self-inflicted  restraints  have  no 
higher  validity  than  a  rule  of  practice  of  a  single  house.  Thus  a 
statute  directing  that  every  bill  shall  have  three  readings  on  sepa- 
rate days  was  merely  directory  and  its  suspension  by  less  than  a  two- 
thirds  vote,  although  forbidden  by  the  act,  did  not  invalidate  legis- 
lative action  on  a  bill.  Such  a  statute  receives  its  entire  force  from 
legislative  sanction  and  exists  only  at  legislative  pleasure.  It  is 
no  more  than  a  rule  of  procedure  adopted  by  the  legislature  to 

44  McDonald  v.  State,  80  Wis.  407;  Brays  v.  Williams,  137  N.  C.  387;  Wise 
v.  Bigger,  79  Va.  269. 

46  French  v.  State  Senate,  146  Cal.  604. 

46  Railway  Co.  v.  Gill,  54  Ark.  101. 

47  Board  of  Supervisors  v.  Heenan,  2  Minn.  335. 
41  State  v.  Hastings,  24  Minn.  78. 


14  Procedure  in  State  Legislatures 

govern  its  own  proceedings.49  Neither  can  one  legislature  bind 
another  by  a  particular  mode  of  repealing  or  amending  statutes,  for 
no  form  can  be  prescribed  for  legislative  action  which  the  constitu- 
tion does  not  lay  down.50 

The  position  of  the  courts  is  further  revealed  by  their  attitude 
towards  acts  which  have  been  called  out  by  the  numerous  evils  at- 
tending special  and  local  legislation.  In  states  where  no  constitu- 
tional mandate  exists  it  has  been  common  to  provide  by  statute  that 
notice  of  intention  to  introduce  any  special  or  local  act  must  be  pub- 
lished in  approved  form.  The  universal  opinion  of  the  courts  has 
been  that  such  statutory  requirements  may  be  disregarded  since 
they  can  exist  only  for  the  legislature's  guidance  and  convenience.51 

The  practice  of  Congress  conforms  to  the  theory  prevailing  in 
the  states.  A  rule  of  procedure  accordingly  is  not  controlled  by  any 
act  of  a  preceding  Congress,52  although  a  law  passed  by  the  then 
existing  Congress  has  been  recognized  as  binding  in  such  matters.53 
It  need  hardly  be  pointed  out,  however,  that,  when  the  question  of 
suspension  comes  up,  statutes  of  the  sort  under  discussion  have  a 
validity  higher  than  a  simple  rule,  inasmuch  as  the  prestige  of  a 
statute  is  greater  than  that  of  a  mere  rule  of  practice. 

In  an  effort  to  assure  the  actual  presence  of  members  at  the 
final  passage  of  a  bill  and  to  escape  the  "  short  roll  call,"  New  York 

49  Sweitzer  v.  Territory,  5  Okla.  297. 

60  Brightman  v.  Kernor,  22  Wis.  54. 

The  New  York  Commission  to  recommend  changes  in  methods  of  legisla- 
tion (appointed  by  the  Governor,  1895)  urged  that  certain  provisions  of  the 
joint  rules  be  enacted  into  statutes  that  they  might  at  least  be  binding  on  each 
house  taken  separately.  (N.  Y.  Assembly  Documents  No.  20,  Session  of  1896.) 
This  is  an  incorrect  statement  of  law. 

"Manigauti  v.  Ward,  123  Fed.  707  (affirmed  199  U.  S.  473,  although  this  point 
did  not  come  up).  Derby  &  Turnpike  Co.  v.  Parker,  10  Conn.  522;  Chamlee  v, 
Davis,  115  Ga.  266;  Opinion  of  the  Justices,  63  N.  H.  625;  Sherman  v,  Benford. 
10  R.  I.  559. 

In  Chalfant  v.  Edwards,  156  Pa.  St.  246,  the  court  spoke  with  disfavor  of  the 
opinion  that  one  legislature  might  disregard  at  pleasure  the  directions  of  its  pre- 
decessor concerning  the  publication  of  notices  of  private  bills,  and  pointed  out  that 
although  the  power  to  repeal  the  act  could  not  be  doubted  yet  it  had  not  been 
exercised,  and  the  citizens  of  any  locality  had  the  right  to  rely  on  the  observance 
of  its  provisions.  The  case,  however,  was  decided  on  other  grounds. 

62  4  Hinds  3298,  3579,  3819. 

"  5  Hinds  6767,  6768. 


Inherent  Powers  in  Matters  of  Procedure  15 

passed  an  act  which  directs  the  presiding  officers  of  each  house  to 
certify  to  the  presence  of  a  constitutional  quorum  and  passage  by  a 
constitutional  majority.64  No  bill  was  to  be  deemed  passed  unless 
so  certified,  and  the  certificate  was  to  be  conclusive  evidence  of  the 
fact  of  passage.  Yet  this  law  has  been  declared  void.  If  the 
journals  show  a  constitutional  quorum  present  and  the  necessary 
affirmative  votes,  the  act  is  good,55  and  a  defective  certificate  can 
be  supplemented  by  the  journals.56  Here  again  the  legislature  is 
forbidden  the  right  to  bind  itself  in  matters  of  form  and  the  con- 
clusion must  be  that  the  success  of  measures  such  as  we  have  been 
discussing  must  be  judged  by  their  moral  effect  upon  the  legislature's 
conduct  of  business,  and  not  by  their  legal  force. 

The  experience  of  those  states  which  try  to  keep  their  codes 
complete  illustrates  the  futility  of  attempts  to  control  legislative 
practice,  as  it  were  from  the  outside.  For  example  the  Political 
Code  of  California  (Sec.  249-250)  requires  that  each  bill  proposing 
an  addition  to  the  general  laws  shall  be  codified  by  the  judiciary 
committee  of  one  of  the  houses,  but  although  this  codification  is 
omitted  the  validity  of  such  acts  cannot  be  questioned.57 

LEGISLATIVE  EMPLOYES 

Attempts  to  regulate  by  statute  the  number  and  compensation 
of  legislative  employes  have  likewise  involved  the  power  of  the  sep- 
arate houses  to  manage  their  own  affairs  in  their  own  way,  without 
being  amenable  to  any  other  department  of  government.  The 
multiplication  of  legislative  sinecures  has  been  a  common  method 
of  rewarding  the  faithful,  and  many  states,  profiting  by  experience, 
have  set  forth  by  statute  the  specific  number  of  employes  allowed 
each  house  and  their  compensation.  Clearly,  however,  the  ob- 
servance of  such  laws  rests  with  the  houses  of  the  legislature  and 
varies  widely  in  different  states.  It  can  be  truthfully  said  that  they 
are  passed  largely  for  moral  effect.  In  Massachusetts  the  provisions 

M  Now  known  as  Chap.  37,  IT  40,  Laws  of  1909. 

65  In  re  Stickney's  Estate,  185  N.  Y.  107. 

86  People  v.  Supervisors  of  Chenango,  8  N.  Y.  317. 

67  Statement  of  N.  W.  Thompson,  President  pro  tern  of  the  California  Senate, 
41st  Session,  in  Legislative  Manual  for  California,  1915.  Mr.  Thompson  also 
suggests  that  laws  of  this  nature  are  contrary  to  the  provision  of  the  constitution 
which  empowers  each  house  to  determine  the  rules  of  its  own  proceedings. 


16  Procedure  in  State  Legislatures 

of  the  statutes  are  followed  scrupulously  in  the  employment  and 
payment  of  legislative  helpers.58  Vermont  reports  that  consider- 
able was  accomplished  by  embodying  such  provisions  in  the  laws 
rather  than  leaving  them  to  the  independent  action  of  the  two 
houses,  and  that  they  have  failed  of  observance  only  in  unimportant 
details.59  On  the  other  ,hand,  it  is  common  elsewhere  for  the  legis- 
lature to  disregard  such  regulations  on  the  ground  that  they  in- 
fringe upon  the  legislative  prerogative.60  The  method  prevailing 
of  old  in  New  Jersey  was  for  each  house  to  employ  a  great  number  of 
unnecessary  aids  and  to  take  the  chance  that  their  compensation 
would  be  provided  for  in  the  bill  which  passed  at  the  close  of  the 
session  to  meet  unexpected  expenses.  Since  the  passage  of  the  act 
defining  the  number  and  compensation  of  employes  this  abuse  has 
to  a  great  extent  disappeared,  although  the  scheme  has  not  been 
entirely  successful.61 

Indiana's  recent  experience  is  an  extreme  illustration  of  the 
situation.  By  an  act  of  1895  the  number  and  pay  of  the  legisla- 
ture employes  were  strictly  limited,  but  for  several  years  the  al- 
lowance for  employes  had  been  increasing  in  both  houses  contrary 
to  the  statute,  until  finally  in  the  session  of  1913  the  amount  spent 
for  help  exceeded  all  previous  records.62  Following  this  session 

68  Statement  of  Mr.  Henry  D.  Coolidge,  Clerk  of  Massachusetts  Senate. 

69  Mr.  John  M.  Avery,  Legislative  Reference  Librarian,  Vermont. 

60  Miss  Ida  M.  Anding,  Legislative  Reference  Librarian,  South  Dakota,  states 
that  subsequent  legislatures  have  disregarded  for  the  above  reason  an  act  regulating 
employes.     In  Illinois  both  houses  have  violated  similar  provisions  (Mr.  Finley 
F.  Bell,  Legislative  Reference  Librarian) .     Because  the  number  of  employes  at  the 
1913  session  had  been  more  than  double  that  provided  by  statute,  the  Progressive 
element  of  the  1915  House  tried  to  get  the  committee  on  contingent  expenses  on 
record  as  to  how  many  would  be  added  in  excess  of  the  statute  during  the  session 
upon  which  they  were  entering  (Illinois  House  Debates,  lQl5,  p.  149).    The  at- 
tempt failed  and  the  usual  conditions  prevailed.     In  New  York,  in  order  to  bring 
the  law  into  conformance  with  practice,  the  legislative  statute  was  amended  in 
1915  to  permit  either  house  to  increase  at  will  the  number  of  its  employes  (Laws 
of  1915,  c.  483).     In  the  majority  of  states  excess  employes  are  paid  from  the  con- 
tingent fund. 

61  Mr.  John  P.  Dullard,  New  Jersey  State  Librarian. 

62  In  1913,  although  the  statute  allowed  forty-five  employes  in  House  and 
Senate,  the  actual  number  was  approximately  one  hundred  and  fifty.     Between 
1907  and  1913  the  sum  expended  for  "help"  in  the  Senate  increased  from  $36,668 
to  $61,572.     The  allowance  for  doorkeepers  increased  more  than  seven  thousand 
dollars,  and  the  added  employes  performed  only  nominal  duties  (See  Senate 


Inherent  Powers  in  Matters  of  Procedure  17 

several  members  and  officers  of  both  houses  were  indicted  and  tried 
in  criminal  court  for  making  out  fraudulent  warrants  to  pay  men 
employed  contrary  to  law.  The  question  considered  by  the  court 
was  whether  the  Senate  and  House  acting  separately  had  the  right 
to  employ  assistants  in  excess  of  the  numbers  named  in  the  act.63 
The  court  did  not  accept  the  contention  that  the  act  of  1895  was 
binding  on  the  two  houses  until  repealed.  The  power  of  each  house 
to  fix  the  number  of  employes  was  not  conferred  by  the  General 
Assembly,  but  came  in  the  nature  of  an  inherent  right  which  the 
General  Assembly  acting  as  a  law-making  body  cannot  curtail  or 
limit.  Therefore  the  act  was  never  binding. 

This  opinion  represents  fairly  well  the  usual  attitude  of  legis- 
lators toward  statutes  which  seek  to  control  legislative  employes. 
Freedom  to  determine  the  number  and  allowance  of  employes  is  a 
prerogative,  similar  to  the  power  of  judging  of  the  qualifications  of 
members  or  of  punishing  for  contempt,  and  is  indispensable.64 

In  accord  with  this  doctrine,  a  joint  committee  of  the  Mon- 
tana Legislature  appointed  to  make  provision  for  the  payment  of 
employes  recently  reported  that  the  section  of  the  constitution65 
which  requires  the  legislature  to  provide  by  law  the  number  and 
compensation  of  employes  is  fulfilled  if  the  legislature  leaves  by  law 
to  each  house  the  right  to  designate  the  number  of  assistants  as  the 
times  demand.66 

In  opposition  to  the  above,  is  the  view  thatjthe  right  to  employ 
clerks  and  assistants  at  will  is  not  inherent,  but  can  be  restricted 
by  law.  The  legislature,  although  the  law-making  power,  is  itself 
regulated  and  controled  by  law.  Therefore,  if  employes  are  de- 
sired in  addition  to  those  specified  by  statutes,  the  law  must  be  so 

Journals,  1907  and  1913).  As  was  pointed  out  at  the  time,  there  had  been  no  in- 
crease in  the  size  of  the  floors  to  sweep  or  in  the  number  of  spittoons  to  clean. 
The  session  of  1915  managed  to  function  with  a  material  reduction  in  the  number 
of  employes. 

63  From  the  opinion  of  the  trial  judge,  rendered  in  the  Marion  County  Crim- 
inal Court,  Dec.  17, 1914. 

64  Supported  in  Cliff  v.  Parsons,  90  Iowa  665;   in  Cook  v.  Auditor-General, 
129  Mich.  48,  the  court  specifically  refused  to  take  the  position  that  payments  to 
legislative  employes  made  by  resolution  and  properly  endorsed  were  illegal  al- 
though contrary  to  a  clearly  expressed  statute. 

85  Sec.  28,  Art.  V. 

68  Montana  House  Journal,  1915,  p.  65. 


18  Procedure  in  State  Legislatures 

framed  or  amended  as  to  authorize  their  employment.67  Such 
a  law,  it  is  urged,  is  binding  on  the  houses  to  the  same  extent  as  on  a 
private  individual,  and  can  be  repealed  or  disregarded  only  by  the 
concurrent  action  of  the  two  houses  and  the  approval  of  the  gov- 
ernor.68 Contrary  to  the  action  of  Montana,  the  legislature  of 
Colorado  fulfilled  the  constitutional  requirement  that  no  payments 
should  be  made  to  employes  except  those  appointed  in  pursuance 
to  law,  by  specifying  by  statute  the  number  and  rate  of  compensa- 
tion. The  Supreme  Court  has  held  that,  in  view  of  this,  the  houses 
cannot  by  separate  resolution  fix  the  compensation  of  employes  at  a 
rate  higher  than  that  allowed  by  existing  law.  The  constitutional 
prescription  is  a  mandate  to  the  legislature  to  fix  it  by  law,  since  it  is 
a  provision  essential  to  the  protection  of  public  rights,  and  when 
such  a  law  has  been  enacted  the  legislature  cannot  ignore  it.69 

The  number  of  times  the  question  of  the  right  of  the  legislature 
to  employ  clerks  and  assistants  has  been  considered  by  the  courts 
is  small,  and  it  is  not  possible  to  cite  precedent  that  is  conclusive, 
yet  the  view  that  the  legislature  in  this  connection  is  at  all  times  a 
law  unto  itself  is  more  in  keeping  with  the  decisions  of  the  courts 
concerning  statutes  seeking  to  control  other  phases  of  legislative 
procedure.  Granted  that  the  legislature  has  the  right  under  the 
constitution  to  employ  assistance  that  it  may  discharge  its  business 
most  expeditiously,  it  is  difficult  to  see  how  it  can  be  restricted  by 
self-imposed  law.  Any  other  view  extends  the  control  of  the  execu- 
tive, whose  approval  would  be  necessary  to  a  removal  of  the  re- 
striction, beyond  mere  approval  or  disapproval  of  the  legislative 
product  to  a  share  in  the  internal  management  of  the  business  of  the 
houses,  a  result  certainly  never  anticipated  by  the  framers  of  our 
state  constitutions.70 

67  State  v.  Wallichs,  14  Neb.  439.  Yet  the  Legislature  has  not  felt  itself 
bound,  and  in  a  number  of  cases  has  exceeded  the  statute  limit.  (Statement  of 
Mr.  A.  E.  Sheldon,  Director  Nebraska  Legislative  Reference  Bureau.) 

88  State  v.  Auditor-General,  61  Mo.  229.  See  also  Walker  v.  Coulter,  113  Ky. 
814,  although  here  the  constitution  strictly  specifies  the  number  of  employes  and 
the  point  under  discussion  was  not  necessary  to  the  decision. 

«9  People  v.  Spruance,  8  Colo.  307, 

70  The  legislature's  independence  in  matters  relating  to  employes  is  somewhat 
restricted  by  constitutional  prohibitions  upon  increases  of  compensation  after  the 
service  is  rendered.  See  Robinson  v.  Dunn,  77  Cal.  473;  State  v.  Williams,  34 
Ohio  St.  218;  State  v.  Chatam,  21  Wash.  437. 

Recently  the  Illinois  Supreme  Court  refused  to  allow  an  appropriation  for 


Inherent  Powers  in  Matters  of  Procedure  19 

In  the  light  of  the  foregoing  the  following  generalizations  may  be 
made.  If  the  legislature  has  the  power  to  act  under  the  constitu- 
tion (the  power  may  be  inherent  in  the  very  nature  of  the  legislative 
function),  it  possesses  full  competence  to  decide  what  methods  of 
procedure  it  will  employ.  The  courts  will  review  the  right  to  exer- 
cise the  power  but  will  leave  the  application  of  constitutional 
directions  concerning  procedure  in  the  hands  of  the  legislatures 
themselves.  If  the  legislative  bodies  are  determined  to  evade 
checks  placed  in  the  fundamental  law,  the  evasion  must  appear 
affirmatively  on  the  journals.  If  legislatures  are  remiss  in  interpret- 
ing constitutional  provisions  the  remedy  "  which  the  constitution 
provides  by  the  opportunity  for  frequent  renewals  of  the  legislative 
bodies  is  far  more  efficacious  than  any  which  can  be  afforded  by  the 
jury."  In  the  last  analysis  we  must  look  to  the  legislature  itself  to 
give  living  content  to  any  rules,  constitutional  or  otherwise.  This 
does  not  signify,  however,  that  constitutional  requirements  concern- 
ing procedure  are  without  effect.  Usually  they  are  respected  to  the 
letter  even  if  the  spirit  be  not  always  fulfilled,  and  where  the  inten- 
tion of  the  framers  is  not  accomplished  there  is  ordinarily  a  good 
practical  reason  for  the  failure  to  do  so. 

telephone  fees  of  members  or  for  the  mileage  of  members.  It  denied  that  these 
expenses  were  incidental  to  the  discharge  of  the  legislature's  business.  (Fergus 
Y.  Russell,  270  111.  304  and  626.)  Nevertheless  it  may  be  argued  with  reason  that 
the  telephone  is  as  necessary  as  are  pages  and  stenographers. 


CHAPTER  II 
THE   ORGANIZATION   OF   THE   HOUSES 

The  first  step  in  the  organization  of  a  new  legislature  is  of 
necessity  the  preparation  of  a  temporary  roll.  If  the  certificates  of 
the  members-elect  are  all  regular  and  uncontested  this  is  a  mere 
clerical  duty.  But  if  the  majority  of  one  party  is  small  and  doubt- 
ful, and  conflicting  election  certificates  have  been  presented,  the 
power  to  draw  up  the  roll  is  open  to  abuse,  since  it  is  highly  desirable 
to  either  party  to  construct  an  organization  which  will  favor  its 
interests  in  the  contests  which  are  to  follow. 

THE  MAKE-UP  OF  THE  ROLL 

Contrary  to  the  practice  of  Congress,  the  legislatures  of  many 
states  have  taken  the  make-up  of  the  roll  out  of  the  hands  of  the 
clerk  of  the  preceding  session  and  placed  the  duty  upon  the  secre- 
tary of  state,  who  certifies  to  the  correctness  of  the  list  of  names 
which  he  presents.  He  is  presumed  to  be  a  more  responsible  officer 
than  the  clerk  and  any  member  named  on  the  roll  is  entitled  to  his 
seat  until  action  is  taken  unseating  him.1 

In  other  states  the  temporary  clerk  calls  the  roll  of  counties 
and  members-elect  present  their  certificates  as  their  districts  are 
called.2  Or  the  duty  may  be  left  with  the  clerk  of  the  last  session, 
with  the  specification  that  only  members  holding  proper  election 
certificates  shall  be  placed  on  the  roll.3  In  Colorado  and  Nebraska 
permanent  organization  is  delayed  until  the  report  of  a  committee 
on  credentials4  but  this  does  not  destroy  the  advantage  gained  by 
the  possession  of  a  majority  on  the  temporary  roll  or  the  importance 

1  Clerk's  Manual,  New  York  Assembly  (1916),  p.  509,  and  Assembly  Journal, 
1914,  p.  30  et  seq.  Also  Legislative  Decision  No.  25,  Michigan  Manual  (1915),  p. 
645.  Members  are,  with  few  exceptions,  sworn  according  to  this  temporary  roll. 
See  journals  of  any  state. 

8  Fixed  by  statute  in  California,  Indiana,  Minnesota,  Montana,  Ohio  and 
Texas. 

3  Fixed  by  statute  in  Arizona,  Iowa,  Maryland,  Nebraska  and  North  Dakota. 

'Colorado,  Annotated  Statutes  If 2897;  Nebraska,  Revised  Statutes  (1913), 
If  3742-3743,  and  the  Blue  Book  (1915),  p.  470. 

[201 


Organization  of  the  Houses  21 

of  the  clerk's  power  in  making  up  the  same.  With  these  two 
exceptions,  persons  appearing  on  the  roll  upon  which  the  house  is 
organized  take  the  oath  and  participate  in  the  permanent  organiza- 
tion, and  remain  members  until  removed  by  the  house.  In  New 
Hampshire,  however,  no  name  is  to  be  entered  for  any  district  from 
which  conflicting  certificates  of  election  have  been  returned.5 

The  method  of  making  up  the  roll  is  usually  prescribed  by 
statute.  In  Illinois,  however,  it  has  been  left  to  custom,  and  confu- 
sion sometimes  results.  At  the  organization  of  the  1915  session  the 
president  of  the  Senate  of  that  state  refused  to  admit  the  roll 
prepared  by  the  secretary  of  state,  which  would  have  deprived  his 
party  of  control,  on  the  ground  that  no  statute  made  this  the  offi- 
cial roll.  The  parties  were  evenly  matched,  and,  as  no  roll  could  be 
agreed  upon,  permanent  organization  was  delayed  for  more  than 
six  weeks,  or  until  a  special  committee  had  completed  a  recount  in 
the  doubtful  districts.6 

CONTESTED  ELECTIONS 

One  of  the  first  questions  to  engage  the  attention  of  the  houses 
is  the  disposition  of  contested  elections.  As  shown  in  the  chapter 
above,  this  right  is  exclusive  with  each  house  and  perhaps  no  power 
has  led  to  graver  abuses.  In  no  state  are  such  contests  dealt  with 
in  a  systematic  way,  nor  have  party  organizations  hesitated  to 
strengthen  their  position  by  high-handed  practices  in  unseating 
members.  Where  no  immediate  decision  is  necessary  to  party 
advantage  the  contest  may  drag  on  for  weeks.  In  1915  the  Assembly 
Committee  on  Privileges  and  Elections  in  New  York  spent  in  two 
election  cases  $9,075.98  for  hotel  expenses  alone.7  In  1914  a  con- 
tested election  before  the  same  body  was  not  decided  until  the  day 
of  adjournment,  and  the  duly  elected  representative  served  but 
part  of  one  day.  Thus  two  men  drew  full  salaries  for  the  same 
office.8 

Inasmuch  as  control  by  the  legislature  of  the  election  of  its 
members  is  no  longer  necessary  as  a  defense  against  executive 
encroachment,  England  has  outgrown  the  conviction  that  the  power 

5  Public  Statutes,  Chap.  4,  Sec.  6. 

•  Illinois  Senate  Debates  (1915),  pp.  4,  5,  et  passim. 

7  Itemized  account  approved  by  the  speaker,  New  York  Times,  Jan.  26, 1916. 

1  Report  of  the  Citizens'  Union  Committee  on  Legislation  for  1914,  p.  4. 


22  Procedure  in  State  Legislatures 

of  decision  in  contested  cases  is  an  inviolable  parliamentary  privi- 
lege, and  since  1868  such  cases  have  been  referred  to  the  courts.9 
But  the  American  •  courts  will  not  permit  our  legislatures  to  part 
with  this  jurisdiction.  The  constitution  of  Pennsylvania  directs 
that  the  trial  of  contested  elections  of  members  of  the  General 
Assembly  shall  be  by  courts  of  law  10  and  in  conformity  to  this  the 
legislature  designated  the  courts  and  the  manner  of  holding  trials. 
The  Supreme  Court  held,  however,  that  by  this  the  legislature  was 
not  deprived  of  the  power,  granted  in  another  section  of  the  con- 
stitution, of  judging  of  the  election  of  its  own  members.  The  pur- 
pose of  the  constitution  and  the  statute  was  merely  to  provide  a 
method  of  procuring  and  presenting  to  the  respective  houses  evi- 
dence necessary  for  an  intelligent  decision.  Final  judgment  must 
rest  with  the  house.11 

More  recently  in  two  important  cases  the  power  of  the  courts 
to  render  even  advisory  opinions  has  been  denied.  The  Corrupt 
Practices  Acts  of  Massachusetts  and  of  Montana  provided  that 
cases  of  contested  elections  of  members  of  the  legislature  should  be 
heard  by  the  courts  upon  the  presentation  of  proper  petitions. 
The  judge  was  to  return  the  findings  to  the  secretary  of  state  to  be 
transmitted  to  the  house  for  which  the  contestant  was  a  candidate, 
and  decrees  were  to  be  entered  in  favor  of  the  one  shown  to  be  law- 
fully elected.  But  in  reviewing  these  provisions  the  highest  courts 
of  both  states  held  that  if  it  was  their  purpose  to  give  final  juris- 
diction to  the  courts,  they  were  void  as  invading  an  exclusive  pre- 
rogative of  which  the  legislature  could  not  divest  itself.  Moreover, 
if  the  decree  of  the  court  was  to  be  advisory  merely,  a  non-judicial 
duty  was  imposed  on  the  courts.  They  were  made  nothing  other 
than  the  agent  of  the  legislature,  and  their  opinion  at  best  could  be 
only  tentative.  In  accordance  with  the  principle  of  the  separation 
of  the  powers  of  government  such  use  cannot  be  made  of  the  courts.12 

9  See  Parliamentary  Debates,  July  6,  1906,  where  a  danger  is  disclosed  in  the 
English  system.    A  strong  element  in  Commons  wished  to  drive  a  justice  to  resign 
because  of  his  conduct  in  an  election  case.    The  Prime  Minister's  indictment  of 
the  old  method  prior  to  1868  could  be  applied  word  for  word  to  present  conditions 
in  our  state  legislatures. 

10  Art.  Ill,  Sec.  17. 

"  In  re  Contested  Election  of  McNeill,  111  Pa.  St.  235. 
12  Dinan  v.  Swig,  112  N.  E.  91  (Mass.  1916);  State  v.  District  Court,  50  Mont. 
134  (1914). 


Organization  of  the  Houses  23 

Thus  it  is  seen  that  escape  from  the  almost  farcical  proceedings 
before  election  committees  by  following  English  example  is  rendered 
impossible  through  our  unique  doctrine  of  the  relation  of  the  depart- 
ments of  government. 

SELECTION  OF  EMPLOYES 

The  selection  of  legislative  employes  is  the  third  important 
step  in  the  business  of  organization.  While  the  needs  of  different 
legislatures  vary  it  is  generally  admitted  that,  were  the  selections 
made  on  the  basis  of  skill  and  training,  fewer  men  would  do  the 
work  more  efficiently.  The  general  report  from  the  states  is  that 
clerks  and  employes  are  chosen  solely  on  grounds  otf  political 
expediency.  Indiana  follows  the  happy  plan  of  making  appoint- 
ments for  half  the  session,  employing  a  new  corps  for  the  last  thirty 
days.  The  following  indictment  by  the  Governor  of  Idaho  could 
apply  quite  generally: 

There  has  been  a  general  increase  in  the  expenses  of  succeeding  legislative 
sessions  out  of  proportion  to  the  increase  in  membership.  Previous  legislatures 
have  placed  upon  the  pay  rolls  many  more  employes  than  were  strictly  necessary 
in  the  transaction  of  their  legitimate  business.  Much  higher  salaries  have  been 
paid  than  would  have  been  necessary  to  secure  similar  services  by  any  corpora- 
tion or  individual.13 

Two  years  later'Governor  Clark  of  Iowa  arraigned  the  legislature  in 
more  severe  language.  Much  of  the  money,  he  asserted,  which  was 
expended  for  legislative  "help"  was  "pure,  unadulterated  graft." 
A  dozen  doorkeepers  were  employed  where  none  was  needed  and 
clerks  sat  around  the  chambers  in  luxurious  ease.  The  system  was 
reprehensible  and  indefensible,  and  he  called  upon  the  General 
Assembly  to  reform.14  In  the  Missouri  House  it  is  the  custom  to 
allow  each  majority  member  to  name  one  clerk.  Thus  the  number 
of  employes  bears  a  strict  ratio  to  the  size  of  the  party  majority.15 
In  Indiana  it  has  been  estimated  that  one-third  of  the  employes 
could  do  the  work.16 

13  Message  to  the  Twelfth  Legislature  (1913). 

14  Biennial  Message  of  the  Governor  (Iowa),  1915. 

"Kansas  City  Times,  January  9,  1913.  At  this  session  the  Democratic 
majority  was  the  largest  in  history  and  approximately  120  clerks  were  engaged. 

"Statement  of  Legislative  Reference  Bureau  in  reply  to  questionnaire  of 
Nebraska  Legislative  Reference  Bureau,  1913. 


24  Procedure  in  State  Legislatures 

Wisconsin  has  solved  the  problem  of  legislative  help  by  adopt- 
ing the  civil  service  principle  under  the  direction  of  the  chief  clerk 
and  the  sergeant-at-arms  of  each  house,  who  make  the  selections 
from  an  eligible  list  furnished  by  the  civil  service  commission  of  the 
state.17  The  number  of  employes  has  likewise  been  reduced  to  the 
minimum  necessary  to  carry  on  the  work  with  maximum  efficiency.18 

The  officers  and  employes  may  be  chosen  by  the  house,  as  is 
done  in  Ohio  and  Pennsylvania,19  but  it  is  more  usual  for  the  house 
to  elect  only  the  more  important  officers  and  to  delegate  to  the 
speaker  or  the  clerk  or  the  sergeant-at-arms  the  selection  of  a  host 
of  minor  officials.20  When  the  power  of  appointment  to  desirable 
positions  with  nominal  duties  is  lodged  with  the  speaker  his  position 
of  leadership  is  strengthened.  In  Massachusetts  the  sergeant-at- 
arms,  who  is  an  officer  of  both  houses  and  appoints  numerous  minor 
officials,  possesses  a  great  deal  of  patronage  and  is  a  powerful  man.21 
Sometimes  the  selection  of  the  rank  and  file  of  employes  is  entrusted 
to  a  committee,  not  infrequently  referred  to  as  the  "  plunder  com- 
mittee" whose  nominations  are  accepted  by  the  house.22 

Where  the  personnel  of  members  changes  as  rapidly  as  in  the 
state  legislatures  the  securing  of  expert  help  is  of  prime  importance. 
An  experienced  clerk  and  a  skilled  assistant  may  be  instrumental  in 
bringing  system  and  order  into  an  otherwise  chaotic  body  of  inex- 
perienced legislators.  To  this  end  permanency  of  tenure  and  a 
graduated  order  of  promotions  are  absolutely  essential.  Such  a 
simple  reform  would  result  speedily  in  an  improved  legislative 
product,  whereas  the  prevailing  situation  makes  one  or  two  over- 
worked individuals  responsible  for  the  legislative  routine  while  a 
great  number  of  other  employes  bask  in  idleness. 

It  may  be  noted  here  that  statutes  regulating  the  manner  of 
organization  or  method  of  selection  of  employes  have  no  binding 
power,  should  the  house  -choose  to  ignore  them;  and  the  point 
of  order,  that  the  house  is  proceeding  contrary  to  law,  will  not 

17  Wisconsin  Statutes,  Chap.  X,  Sec.  11  Ig,  and  House  Rule  9,  and  Senate 
Rule  93. 

18  Statement  from  Legislative  Reference  Library. 

19  Of  course  the  nominees  are  selected  by  a  "slate  committee." 

20  For  example,  New  York  and  Massachusetts. 

21  Frothingham,  "A  Brief  History  of  the  Constitution  and  Government  of 
Massachusetts,"  p.  97. 

82  For  example,  Indiana  H.  J.  1915,  p.  73;  Kansas  and  Washington  also. 


Organization  of  the  Houses  25 

usually  be  entertained.  For  this  the  states  have  Congressional 
precedent.23 

It  is  usual  to  adopt  the  rules  of  the  last  session  with  perhaps 
minor  changes  reported  by  the  rules  committee.  Until  the  rules  are 
adopted  the  house  operates  under  general  parliamentary  law.  On 
these  grounds  a  motion  for  the  previous  question  was  entertained 
in  the  New  York  Senate  and  is  the  only  instance  on  record  of  such 
a  motion  being  considered  by  that  body.24 

The  organization  of  each  house  completed  and  the  fact  sent  by 
message  to  the  other  house,  it  is  customary  to  appoint  a  joint  com- 
mittee to  wait  upon  the  governor  to  inform  him  that  the  legislature 
is  ready  to  proceed  to  business. 

23  See  1  Hinds  82,  242,  245. 

M  Clerk'8  Manual,  1916,  p.  650. 


CHAPTER   III 
INTRODUCTION   OF   BILLS 

It  is  generally  recognized  that  our  present  legislative  machinery 
was  not  designed  to  meet  the  heavy  burdens  placed  upon  it  in  the 
form  of  hundreds  of  measures  introduced  each  session.  Legislative 
channels  are  congested  by  countless  bills  of  individual  members, 
and  no  satisfactory  methods  have  been  devised  to  stem  the  torrent. 
Indeed  it  is  not  strange  that'  a  procedure  developed  to  secure  delib- 
eration for  measures  introduced  by  the  tens  should  prove  inadequate 
when  measures  are  presented  by  the  thousands.  At  a  time  when 
legislation  is  increasing  rapidly  in  complexity  and  technical  detail 
there  exist  no  limits,  except  the  self-imposed  restrictions  of  individ- 
ual members,  to  the  number  of  bills  which  a  house  must  consider.1 

EARLY  METHODS  OF  INTRODUCTION 

The  right  of  a  member  to  demand  consideration  for  a  legisla- 
tive proposal  has  not  always  been  so  clear  as  at  present.  In  the 
early  days  of  our  state  legislatures,  following  the  practice  of  Parlia- 
ment, bills  could  be  introduced  only  by  motion  for  leave  or  by  order 
of  the  house,  and  in  either  case  action  by  a  committee  was  neces- 
sary.2 A  member  seeking  to  introduce  a  bill  would,  after  one  day's 
notice,  state  to  the  house  its  general  nature  and  move  for  leave. 
Leave  being  granted,  a  committee,  of  which  the  proponent  was 
always  made  chairman,  was  appointed  to  prepare  and  bring  in  the 
bill.3 

1  See  Bulletin  of  Nebraska  Legislative  Reference  Bureau,  "Legislative  Proce- 
dure in  the  Forty-eight  States,"  pp.  10-11,  for  a  table  of  number  of  bills  intro- 
duced each  session  from  1909-1913.    Each  successive  session  shows  an  increase. 

2  Clark,  "Assembly  Manual  for  New  York"  (1816);  Sutherland,  "Legisla- 
tive Manual  for  Pennsylvania"  (1830).     See  also  the  journals  of  New  York, 
Pennsylvania,  Massachusetts  and  Virginia  for  about  the  year  1800.    For  a  com- 
plete discussion  of  this  method  see  Debates  of  Congress,  1  Sess.,  20  Cong.,  823-827. 

3  Earlier  practice  in  Pennsylvania  had  allowed  a  member  to  introduce  a  bill 
in  place.    The  rule  was,  "Any  member  may  read  a  bill  in  his  place,  and  by  per- 
mission of  the  house  present  it  to  the  chair;  it  shall  then  be  proceeded  upon  as  if 
presented  by  a  committee."    (Rule  14,  Pa.  H.  J.  1805,  p.  28.)    Yet  the  right  was 

[26] 


Introduction  of  Bills  27 

Closely  related  to  the  above  method  was  the  order  of  inquiry, 
which  was  simply  an  order  to  a  committee  to  consider  the  expe- 
diency of  legislating  along  a  certain  line.4  It  was  grounded  on  a 
presumed  lack  of  knowledge  and  was  an  investigation  started  by 
the  legislature  to  secure  information  which  could  not  otherwise  be 
obtained.5  At  one  time  generally  employed,6  this  form  survived  in 
Massachusetts  alone,  where  it  was  .not  abolished  until  1893.7  By 
that  time  it  had  become  the  normal  way  of  introducing  measures 
for  consideration,  but  having  lost  all  traces  of  its  original  purpose, 
it  remained  only  as  a  cumbersome  method  of  initiating  legislation. 
Committees  were  charged  with  preparing  measures  when,  because 
of  the  great  increase  in  the  number  presented,  their  normal  function 
was  to  sift  measures,  and  great  delay  resulted. 

A  petition  often  formed  the  basis  of  a  bill  in  the  earlier  days. 
Indeed  the  chief  work  of  standing  committees  was  the  consideration 
of  petitions.  Originally,  a  committee  reporting  favorably  recom- 
mended that  a  select  committee  be  appointed  to  bring  in  a  bill 
along  the  lines  of  the  petition.  Reference  of  a  petition,  however, 
soon  came  to  confer  authority  to  introduce  a  bill  formally,  although 
theretofore  the  committee  in  possession  of  the  petition  had  not  been 
able  to  report  by  bill  unless  empowered  to  do  so  by  a  special  resolu- 
tion.8 Introduction  by  petition  is  still  common  in  some  New  Eng- 

restricted  by  requiring  leave  to  be  obtained.  An  examination  of  the  journals  will 
show  that  but  few  were  introduced  in  this  manner  and  that  practically  all  bills 
were  presented  by  a  committee  pursuant  to  order.  So  strong  was  the  feeling  that 
measures  introduced  should  first  be  subjected  to  review  that  later  the  privilege 
of  introducing  bills  in  place  was  withdrawn,  and  the  colonial  practice  of  introduc- 
tion solely  by  committee  was  restored. 

4  In  Congress  it  was  "a  most  common  form"  for  measures  other  than  those 
initiated  by  petition.     (Debates  of  Congress,  2  Sess.,  19  Cong.,  Col.  776;  and 
statement  of  Mr.  Polk,  Speaker,  Debates  of  Congress,  2  Sess.,  24  Cong.,  Col. 
1340.    See  also  the  journals  of  the  time.) 

5  Report  of  the  Special  Rules  Committee,  Massachusetts  House  Documents, 
No.  5,  Session  of  1893. 

6  See  journals  of  the  legislatures  of  the  first  quarter  of  the  nineteenth  century, 
in  particular  the  journals  of  Pennsylvania. 

7  Massachusetts  S.  J.  1893,  p.  155.    Today  an  order  of  inquiry  merely  author- 
izes an  investigation  and  not  the  introduction  of  a  bill.    (Ruling  of  the  Speaker, 
H.  J.  1898,  p.  456.) 

8  See  journals  of  Pennsylvania,  Massachusetts  or  Virginia  about  1800.     No 
committee  was  authorized  to  report  a  bill  unless  granted  by  resolution  the  privi- 
lege "to  report  by  bill  or  otherwise."    In  course  of  time  this  was  granted  to  cer- 


28  Procedure  in  State  Legislatures 

land  states  and  is  required  in  Massachusetts  for  all  private  bills. 
The  petition,  however,  must  be  accompanied  by  a  draft  of  the  bill, 
and  although  it  is  in  itself  a  mere  survival,  only  a  fraction  of  even 
the  general  measures  in  Massachusetts  are  introduced  without  it.9 
The  point  of  order  that  a  bill  is  broader  in  its  scope  than  the  peti- 
tion will  be  entertained.10 

The  cumbersome  method  of  appointing  a  committee  to  prepare 
and  bring  in  a  bill  gave  place,  as  the  pressure  of  business  increased, 
to  introduction  of  the  complete  measure  from  the  floor,  upon  leave, 
and  after  one  day's  notice.11  At  first  debate  might  occur  upon  the 
motion  for  leave  but  it  soon  became  common  to  grant  leave  to  all 
by  unanimous  consent.  Thereupon  introduction  at  will  without  the 
formality  of  securing  leave  came  to  be  permitted.12 

From  this  brief  historical  survey  it  is  clear  that  originally  the 
privilege  of  a  member  to  introduce  measures  for  consideration  was 
not  the  unregulated  right  which  it  is  today.  The  prevailing  doc- 
trine was  that  the  consent  of  the  house,  or  at  least  of  a  committee 
thereof,  must  be  gained  before  a  bill  could  be  admitted  for  considera- 
tion, and  in  granting  assent  real  deliberation  was  involved.13  The 

tain  standing  committees  for  the  session,  and  later  it  was  extended  to  all  by  a 
blanket  resolution.  Afterwards  it  was  incorporated  in  the  rules. 

9  Massachusetts  Senate  Rule  22,  House  Rule  29. 

10  Notes  on  Rulings,  Massachusetts  Manual  1916,  p.  634.     The  method 
permits  measures  to  be  proposed  without  a  member  being  recognized  as  sponsor, 
for  although  some  member  must  endorse  each  one,  he  is  not  thereby  made  advo- 
cate for  it.    (Frothingham,  "Brief  History  of  the  Constitution  and  Government 
of  Massachusetts,"  p.  93.) 

11  As  early  as  1808  introduction  by  members  from  the  floor  was  permitted  in 
the  New  York  Senate.    When  first  recognized  by  the  rules  the  method  was  em- 
ployed but  little,  the  great  bulk  of  proposed  measures  coming  in  by  petition. 

12  In  1843  in  Pennsylvania;  House  Resolution  No.  31.    In  1868  the  New  York 
Assembly  adopted  the  order  of  introduction  of  bills  on  call  of  counties  (A.  J., 
p.  94).     Several  states  still  adhere  to  introduction  by  leave  in  which  case  one 
member  can  compel  a  motion  to  grant  leave. 

13  The  question  was  fully  discussed  in  Congress  in  1827  when  a  proposal  was 
up  to  amend  the  rules  to  make  it  clear  that  no  bill  should  be  introduced  except 
upon  the  report  of  a  committee,  the  old  rule  being  so  worded  as  to  lead  some  to 
fear  that  bills  might  be  brought  in  without  committee  action  thereon.     The 
reason  given  why  the  House  usually  admitted  notice  of  intention  to  introduce  a 
bill  was  that  the  judgment  of  the  committee  which  would  report  on  its  expediency 
would  be  accepted  since  the  committee  exercised  a  discretion  in  the  matter.    In 
the  course  of  the  debate  Mr.  Archer  said:  "But  if  a  member  of  the  House  may, 


Introduction  of  Bills  29 

sifting  forces  of  the  house  were  thus  applied  before  legislative  pro- 
posals assumed  the  dignity  of  bills.  Bills  were  introduced  as  the 
result  of  committee  deliberation  and,  with  the  exception  of  con- 
sideration in  the  committee  of  the  whole,  were  not  usually  sent 
again  to  a  committee. 

PERSONAL  RESPONSIBILITY  OF  MEMBERS  FOR  INTRODUCING 

MEASURES 

In  our  legislatures,  where  nothing  like  a  responsible  ministry 
has  been  developed,  action  must  be  inaugurated  by  the  private 
member.  With  the  exception  of  appropriation  bills,  measures  are 
rarely  introduced  by  committee  action.  Members  are  proverbially 
careless  about  exercising  their  right.  They  are  not  impressed  with 
the  value  of  the  legislature's  time  nor  are  they  conscious  that,  by 
their  failure  to  select  carefully  what  measures  they  will  propose, 
they  render  deliberation  upon  them  a  mockery.  A  recent  investiga- 
tion carried  on  among  the  members  of  the  Nebraska  Legislature 
revealed  that  only  40  per  cent  of  the  bills  introduced  were  the  result 
of  the  members'  own  initiative  or  study  of  the  subject.  Sixty  per 
cent  were  introduced  at  the  request  of  individuals  or  societies.14 

Permitting  the  words  "by  request,"  to  be  endorsed  upon  a 
bill,  as  is  done  in  many  states,  favors  the  introduction  of  trivial 
measures  by  relieving  the  proponent  of  responsibility.  The  practice 
reaches  a  real  abuse  in  Missouri,  where  in  19.15,  15  per  cent  of  the 
House  bills  were  "by  request."  Very  rarely  in  any  state  do  such 
measures  become  law.  Generally  they  are  never  reported  favorably 
from  committee.  In  Pennsylvania  such  an  endorsement  means  the 
death  warrant  of  a  bill,  as  members  argue  that  there  must  be  some- 
thing wrong  if  the  sponsor  is  unwilling  to  identify  himself  with  it.15 

on  leave,  bring  in  any  bill  which  suits  his  particular  views,  and  that  bill  must  of 
necessity  pass  immediately  to  its  first  and  second  reading,  all  sound  legislation 
would  be  at  an  end."  (Debates  of  Congress  1  Sess.,  20  Cong.,  Col.  823  to  827.) 
Quoted  by  Chester  Lloyd  Jones,  Proc.  A.  P.  S.  A.;  1913-14;  p.  191. 

14  Bulletin  of  the  Nebraska  Legislative  Reference  Bureau,  "Legislative  Proce- 
dure in  the  Forty-eight  States,"  p.  9. 

15  Statement  of  Mr.  Scott,  Chairman  of  Committee  on  Committees,  Penna. 
House,  1913.     Illinois  and  Kansas  are  notable  offenders.     The  Illinois  Voters' 
League  strongly  urges  prohibition  of  the  practice.    (See  Bulletin  of  December  20, 
1914.)     The  rule  in  the  Washington  Senate  is  that  such  bills  are  not  to  be  printed 
unless  by  special  order. 


30  Procedure  in  State  Legislatures 

The  rule  that  no  member  shall  introduce  a  bill  which  he  is 
unwilling  to  defend  and  support  personally  on  the  floor,  although 
difficult  of  enforcement,  is  a  good  one  and  should  be  followed  con- 
scientiously.16 Nevertheless  bills  are  often  dropped  in  "  sight  un- 
seen." For  example,  a  representative  lately  confessed  that  he  did 
not  remember  who  had  handed  him  a  bill  of  far-reaching  effect 
which  he  had  introduced,  except  that  he  believed  that  it  had  been 
a  woman.17 

Either  carelessly  or  through  a  desire  to  be  identified  with 
popular  legislation,  members  introduce  many  duplicate  measures. 
In  the  1913  session  of  the  Michigan  Legislature,  nine  "blue  sky" 
laws  were  introduced.18  The  same  year  112  bills  were  introduced 
in  duplicate  in  the  Nebraska  Legislature,  and  some  even  in  triplicate, 
one  being  introduced  twice  by  the  same  senator  and  once  by  a 
member  of  the  House.19  ^Naturally  if  there  is  a  healthy  representa- 
tion of  two  parties,  both  will  strive  to  introduce  bills  on  important 
subjects;  but  attempts  to  facilitate  passage  by  introducing  identical 
measures  in  both  houses  are  more  common  and  less  easy  to  defend. 
Legislative  reference  bureaus  have  rendered  important  service  in 
urging  members  to  combine  measures  and  in  calling  attention  to 
duplicate  bills.20  The  rules  of  California  permit  the  committee  on 
engrossment  to  substitute  a  bill  of  the  other  house  identical  with 
one  on  their  own  calendar,21  and  in  Oregon  a  committee  exists  to 
pass  on  all  bills  before  printing  and  thus  avoid  duplication.22  For 

16  This  is  Nebraska  House  Rule  34. 

17  Indianapolis  Star,  March  2,  1915. 

The  following  colloquy  over  a  bill  up  for  final  passage  took  place  at  a  recent 
session  of  the  Illinois  Senate. 

Mr.  Dailey:     "What  is  the  purpose  of  the  bill?" 

Mr.  Meeker:     "I  don't  know;  the  bill  wras  handed  to  me." 

Mr.  Dailey:     "You  are  merely  the  foster-father?"1 

Mr.  Meeker:     "Yes,  I  am  the  medium  through  which  the  bill  was  intro- 
duced." 

It  may  be  added  that  the  bill  received  a  majority  of  the  votes  of  those  present 
but  failed  to  receive  the  constitutional  number  and  thus  failed.  (Senate  Debates 
for  1915,  p.  1130.) 

18  Reply  to  questionnaire  of  Nebraska  Legislative  Reference  Bureau. 

19  Statement  from  the  Nebraska  Legislative  Reference  Bureau. 

20  The  South  Dakota  Legislative  Reference  Library  reports  particular  suc- 
cess along  this  line. 

21  Assembly  Rule  9;  Senate  Rule  3. 

22  Statement  in  reply  to  Nebraska  Questionnaire,  1913. 


Introduction  of  Bills  31 

the  same  purpose  the  printing  committees  of  the  Washington  houses 
are  instructed  to  scan  all  bills.23 

RESTRICTIONS  UPON  THE  FREE  INTRODUCTION  OF  MEASURES 

The  increasing  number  of  bills  presented  has  led  to  discussion 
as  to  the  feasibility  of  establishing  some  form  of  censorship  upon 
their  introduction.  But  as  brought  out  by  the  Massachusetts  com- 
mittee to  revise  legislative  procedure,  the  duty  of  the  censor  would 
necessarily  be  more  than  clerical.  Consequently  it  could  not  be 
delegated  to  anyone  outside  the  legislature,  although  it  is  unlikely 
that  any  group  of  members  could  exercise  any  material  power  of 
selection  without  incurring  the  dislike  of  their  colleagues  and  be- 
coming the  victims  of  political  scheming.24  A  proposal,  recom- 
mended by  a  joint  committee  of  the  Massachusetts  Legislature  in 
191 0,25  designed  to  sift  measures  by  limiting  the  number  one  member 
might  introduce,  did  not  meet  with  the  favor  of  the  two  houses, 
inasmuch  as  they  were  unwilling  to  restrict  their  present  unlimited 
right.  Any  innovation  with  this  purpose  in  view  is  apt  to  run 
counter  to  the  accepted  belief  that  the  channel  should  at  all  times 
be  kept  open  in  order  that  the  overtures  of  the  most  humble  citizen 
may  easily  attain  legislative  consideration. 

There  are  numerous  provisions  of  one  kind  or  another  limiting 
the  time  in  which  bills  may  be  introduced,  but  their  purpose  is 
rather  to  protect  against  hasty  legislation  than  to  restrict  the  quan- 
tity. In  two  states,  however,  rules  have  been  adopted  designed  to 
decrease  the  number  which  each  member  may  propose.  Introduc- 
tion of  bills  in  the  Georgia  House  is  in  order  but  three  days  a  week, 
and  a  member  can  present  but  one  bill  of  a  general  nature  each 
day.26  In  Illinois  a  member  may  introduce  three  bills  a  day  during 
the  first  three  weeks;  thereafter  on  fuesdays  only.27  But  the 
efficacy  of  these  provisions  is  greatly  weakened  by  the  custom  of 
granting  unanimous  consent  to  introduce  bills  at  any  time.28 

» Ibid. 

24  Report  of  the  Massachusetts  Committee  to  Revise  the  Rules,  1915,  p.  29. 

25  Ibid.,  p.  28. 

M  House  Rule  40. 
57  House  Rule  18. 

28  Mr.  E.  D.  Shurtleff,  member  of  the  Rules  Committee  of  Illinois  House, 
states  that  he  has  never  known  such  consent  to  be  refused. 

From  California  comes  the  latest  novelty  in  the  form  of  a  constitutional 


32  Procedure  in  State  Legislatures 

PKESENT-DAY  METHODS  OF  INTRODUCTION 

The  procedure  followed  in  introducing  a  bill  varies  somewhat 
in  the  different  states.  In  a  few  the  rules  require  that  the  old  for- 
mality of  asking  for  leave  be  carried  out.29  In  others  introduction 
by  roll  call  of  counties  is  still  observed.30  Under  the  latter  procedure 
a  member  rises  as  his  county  is  called  and  notifies  the  speaker  that 
he  has  a  bill  to  introduce.  A  page  then  hurries  a  copy  to  the  clerk 
who  reads  the  title  to  the  house.31  In  Illinois  bills  are  introduced 
upon  a  roll  call  of  members.32  The  more  general  practice  permits 
members  to  secure  recognition  from  the  presiding  officer  when  the 
house  is  under  the  proper  order  of  business,  and  to  send  the  bill  to 
the  clerk  who  reads  the  title.  This  constitutes  the.  first  reading.  If, 
however,  the  constitution  requires  three  readings  in  full,  a  pretense 
of  reading  the  text  is  made. 

To  escape  the  useless  waste  of  time  involved  in  the  above 
procedure,  several  states,  after  the  example  of  Congress,  provide  a 
box  in  which  bills  are  deposited,33  or  have  required  that  they  be  filed 

amendment  offered  in  a  resolution  to  the  Assembly.  Bills  are  to  be  presented  to 
the  Supreme  Court  before  the  legislature  convenes,  which  shall  render  an  advisory 
opinion  as  to  their  merits.  The  number  which  members  may  initiate  after  the 
session  opens  is  greatly  restricted.  (Assembly  Constitutional  Amendment,  No. 
57,  Feb.  3,  1913.) 

The  effect  of  California's  first  "split  session"  was  an  increase  of  over  one 
thousand  bills  presented.  The  first  thirty  days  were  largely  devoted  to  introduc- 
tion of  measures.  (Statement  from  State  Library  to  Nebraska  Questionnaire, 
1913.)  But  in  1915  the  number  swung  back  to  normal.  (Key  to  Chaptered  Laws 
for  1915.) 

29  True  of  Connecticut,  Delaware,  Iowa,  Louisiana,  Nebraska,  and  New 
Jersey  Senate. 

30  Georgia,  Indiana,  Kentucky  and  Ohio. 

31  Hughes,  "Guide  to  Parliamentary  Practice  in  Ohio".  (1913).    This  follows 
the  early  practice  of  Congress  when  motions  for  leave  or  resolutions  of  inquiry 
were  introduced  upon  a  call  of  the  states.    Debates  of  Congress,  2  Sess.,  24  Cong., 
Col.  1341. 

32  House  Rule  18,  and  "Law  Making  in  Illinois,"  pamphlet  issued  by  Illinois 
Legislative  Reference  Bureau. 

33  Maine,  New  Hampshire  House,  New  York,  North  Carolina  Senate.     In 
1914  New  York  adopted  the  requirement  that  before  a  bill  is  placed  in  the  box  it 
must  be  stamped  by  the  clerk  to  show  that  it  was  presented  personally  by  a  mem- 
ber.   This  was  to  prevent  bills  from  being  dropped  in  by  other  persons,  chiefly 
clerks. 


Introduction  of  Bills  33 

beforehand  with  the  speaker  or  clerk.34  Thus  bills  receive  their 
first  reading  and  reference  to  committee  one  day  after  they  have 
been  presented  to  the  house,  the  speaker  being  given  time  to  select 
the  appropriate  committees.35  Otherwise  his  reference  is  the  result 
of  a  snap  judgment.  The  reading  of  titles  on  introduction  and  oral 
reference  by  the  presiding  officer,  consumes  precious  time.  The 
whole  order  of  business  is  gone  through  in  the  most  perfunctory 
manner.  Members  pay  no  attention,  relying  upon  the  printed 
journals  or  calendars  to  learn  all  they  want  to  know.  And  inasmuch 
as  the  printed  journal  of  the  day's  proceedings  appears  the  next 
morning  there  is  no  reason  why  introduction  and  reference  should 
consume  any  time  of  the  house  whatever.  Notice  in  the  journal 
would  be  sufficient  and,  where  no  constitutional  obstacle  prevents, 
following  the  practice  of  Congress,  could  be  counted  as  first  reading. 
It  is  required  by  the  constitutions  of  nine  states  that  notice  of 
intention  to  introduce  a  private  or  local  bill  be  published,36  and  the 
legislative  law  of  seven  other  states  requires  that  notice  be  published 
or  served.37  In  Massachusetts  and  South  Carolina  private  bill 
legislation  must  be  founded  upon  petition,38  and  thus  is  retained  a 
trace  of  the  ancient  practice  when  all  legislation  was  based  upon 
petitions  for  redress  of  grievances.  In  this  connection  it  has  been 
urged  that  a  return  to  the  practice  of  initiating  private  measures 
by  petition  and  the  numbering  of  them  in  a  series  distinct  from 
public  bills,  would  prove  the  first  step  towards  developing  a  special 
procedure  in  private  and  local  matters.39  This  is  indeed  a  consum- 
mation devoutly  to  be  wished.  Since  a  bill  for  the  particular  benefit 
of  certain  persons  or  of  a  special  locality  may  prove  injurious  to 
others,  the  passage  of  such  a  measure  involves  a  judicial  inquiry 

84  Minnesota,  Pennsylvania,  and  Virginia. 

86  New  York  Assembly  Rule  6;  Pennsylvania  House  Rule  10. 

18  Index-Digest  of  State  Constitutions.  They  are:  Alabama,  Arkansas, 
Florida,  Georgia,  Louisiana,  Missouri,  Oklahoma,  Pennsylvania  and  Texas. 
North  Carolina  and  New  Jersey  simply  require  notice  before  passage. 

37  Connecticut,  Maine,  Massachusetts,  New  Hampshire,  Rhode  Island,  and 
West  Virginia.    Connecticut,  Maine,  New  Hampshire  and  Rhode  Island  require 
publication  before  the  beginning  of  the  session. 

38  Massachusetts  Senate  Rule  15,  House  Rule  31.    Code  of  South  Carolina 
(1912)  H3<t-33. 

39  See  article  by  J.  David  Thompson,  "An  Analysis  of  Present  Methods  of 
Congressional  Legislation,"  Proceedings  A.  P.  S.  A.,  Vol.  X,  p.  168. 


34  Procedure  in  State  Legislatures 

and  determination,  rather  than  a  decision  on  public  policy.  Recog- 
nizing this  fact,  the  English  Parliament  treats  it  very  much  as  a 
lawsuit  would  be  treated,  and  the  preliminaries  attending  its  intro- 
duction closely  resemble  the  pleadings  in  a  civil  suit.  We  have, 
however,  made  but  feeble  progress  in  dealing  with  private  bill 
procedure,  nor  has  the  mere  provision  that  they  be  accompanied  by 
petitions  availed  anything  in  Massachusetts.  If  the  petition  were 
required  to  set  forth  the  scope  and  object  of  the  bill  and  opportunity 
were  given  for  adverse  interests  to  file  a  counter  petition  something 
approaching  a  civil  pleading  would  be  attained.  These  claims  and 
counter  claims  could  then  accompany  a  bill  throughout  its  legisla- 
tive progress.40  South  Carolina  has  gone  so  far  as  to  require  that 
the  petition  must  set  forth  the  merits  of  the  case  and  why  the 
purpose  cannot  be  accomplished  by  general  law,  and  a  statement 
that  all  parties  known  to  be  concerned  have  had  the  requisite  notice 
must  be  included.41  Connecticut  statutes  provide  that  petitions  of 
an  adversary  nature  must  be  accompanied  with  a  citation  to  the 
adverse  parties  to  appear,  and  twelve  days  notice  must  be  given 
before  the  day  of  appearance.42  School  fund  petitions  are  return- 
able a  month  before  the  session  opens  and  are  heard  by  a  special 
commission  which  reports  to  the  General  Assembly.43 

40  Recommended  by  the  Governor's  Commission  of  New  York  (1895).    See 
New  York  Assembly  Document  No.  20,  1896. 

41  Code  of  South  Carolina,  supra. 

42  General  Laws  of  Connecticut  (1902)  If  7. 
"Ibid.,  1fl5. 

The  procedure  which  promoters  of  private  bills  in  Parliament  must  observe 
before  application  is  made  are  given  in  the  Standing  Orders  of  the  House  of  Com- 
mons, Part  II.  They  exist  unchanged  today  as  summarized  by  .May,  "Parlia- 
mentary Practice,"  pp.  679-684.  It  will  be  seen  that  petitioners  must  furnish 
complete  information  for  the  guidance  of  the  committee  which  is  to  carry  on  the 
investigation.  Proof  that  all  conditions  have  been  fulfilled  must  be  exhibited  to 
one  of  the  Examiners  of  Petitions  for  Private  Bills,  who  are  officers  appointed  by 
the  Speaker.  (S.  O.  No.  2.) 

The  Canadian  legislatures  have  followed  the  English  precedent.  The  rules 
of  the  Ontario  Legislature,  which  have  served  as  models  for  the  western  provinces, 
specify  in  detail  what  the  petition  shall  contain  and  what  additional  matter  shall 
be  deposited  with  the  clerk.  The  Committee  on  Standing  Orders  reports  on  the 
sufficiency  of  the  notice,  and  the  clerk  certifies  that  the  necessary  documents  have 
been  deposited  with  him.  No  motion  for  the  suspension  of  these  rules  is  enter- 
tained unless  reported  by  the  Committee  on  Standing  Orders.  (Rules  of  the 
Ontario  House,  51-59.) 


Introduction  of  Bills  35 

In  view  of  the  meager  information  conveyed  by  the  title  there 
has  been  some  agitation  in  favor  of  requiring  an  explanatory  note 
to  accompany  each  bill  on  introduction.  New  Jersey  adopted  a 
rule  which  reads:  "Each  member  when  introducing  a  bill  shall 
submit  with  each  copy  a  statement  setting  out  the  objects  proposed 
to  be  accomplished  by  its  enactment  and  the  localities  or  persons 
the  bill  will  affect,  which  statement  shall  be  referred  to  the  com- 
mittee with  the  bill."44  These  statements  are  pasted  on  the  printed 
copies  of  the  bills  in  the  hands  of  the  members  and,  although  not 
considered  an  integral  part  of  these  documents,  are  very  helpful  to 
all.  The  speaker  of  a  recent  session  reports  that  the  rule  has  been 
particularly  useful  in  cases  where  the  statute  proposed  contains  no 
language  except  that  which  repeals  an  existing  law.  Where  the 
proposed  legislation  affects  special  localities  or  individuals  the 
notice  informs  the  reader  at  once.  The  Wisconsin  House  requires 
a  similar  synopsis  to  be  presented  with  the  bill,  but  it  does  not 
appear  on  the  printed  copy.45  When  it  is  remembered  that  the 
modern  legislator  has  thousands  of  pages  of  printed  matter  before 
him,  much  of  which  is  of  an  amendatory  nature,  on  which  he  is 
supposed  to  assert  an  opinion,  the  value  of  a  trustworthy  summary 
of  the  provisions  of  the  bills  on  his  file  is  obvious. 

44  House  Rule  71 .    It  is  optional  in  the  Senate;  Rule  36. 

46  Rule  40.  Bills  in  the  Illinois  Senate  sometimes  have  explanatory  state- 
ments appended  to  them  but  they  amount  to  little.  A  rule  similar  to  the  New 
Jersey  one,  proposed  by  Progressives  in  the  1913  session  of  the  New  York  Assem- 
bly, failed  of  adoption.  (Journal,  p.  17.) 


CHAPTER   IV 
COMMITTEES 

The  real  work  of  the  legislature  upon  which  the  quality  of  legis- 
lation depends  is  fundamentally  the  work  of  the  committees.  With 
them  rests  the  burden  of  sifting  from  the  innumerable  bills  pre- 
sented those  worthy  of  consideration  by  the  whole  house,  and  upon 
them  is  laid  the  duty  of  revising,  amending  and  presenting  these 
measures  in  what  is  usually  their  final  form.  They  are  the  only 
agents,  as  yet  developed  in  this  country  for  this  purpose,  upon 
which  responsibility  can  be  lodged. 

In  our  state  legislatures  a  meeting  of  the  body  of  the  house  has 
lost  much  of  its  deliberative  character.  Discussion,  save  on  occa- 
sional matters  of  political  importance,  has  almost  disappeared. 
Members  in  their  desire  to  get  business  done  are  impatient  and 
hostile  to  speech  making,  and  a  too  conscientious  member  who  tries 
to  thresh  out  measures  on  the  floor  falls  quickly  into  disfavor.  The 
individual  must  consequently  depend  upon  the  judgment  of  a  com- 
mittee, inasmuch  as  pressure  of  time  allows  but  little  parliamentary 
discussion  of  even  the  most  important  legislation,  and  it  is  a  physi- 
cal impossibility  for  him  to  read  the  mass  of  printed  matter  pre- 
pared for  his  information  and  guidance.1  The  committees  must 
therefore  be  little  parliaments  in  very  fact,  and  it  is  no  exaggeration 
to  say  that  they  are  the  most  important  factor  in  legislative  proce- 
dure. Nowhere  are  experience  and  intellectual  power  better  re- 
warded than  in  the  detailed  discussion  possible  around  a  table  in  a 
committee  room. 

EARLY  FUNCTION  OF  STANDING  COMMITTEES 

In  the  early  days  when  bills  passed  through  the  censorship  of  a 
select  committee  before  introduction,  the  need  for  standing  com- 
mittees was  not  great.  In  1800  there  were  but  seven  standing 
committees  in  the  New  York  Assemby,2  and  their  duty  was  solely 

1  A  prominent  member  of  the  Pennsylvania  Legislature  states  that  at  the 
close  of  a  session  he  once  piled  on  the  floor  the  printed  matter  he  had  been  ex- 
pected to  peruse.     The  pile  was  more  than  four  feet  high. 

2  Journal  of  the  New  York  Assembly  (1800),  p.  35. 

[361 


Committees  37 

to  report  upon  petitions  referred  to  them.  If  the  petition  was 
worthy,  the  standing  committee  reported  a  resolution  that  a  select 
committee  be  appointed  to  bring  in  a  bill.  Because  of  the  increas- 
ing number  of  petitions,  the  standing  committees  had  by  1830 
increased  to  twenty-nine,  and  had  been  granted  the  right  to  intro- 
duce measures  based  upon  petitions.3  However  a  bill  might  be 
introduced,  it  went  immediately  to  the  committee  of  the  whole  for 
consideration;  for  even  private  members'  bills  introduced  on  leave 
without  the  mediation  of  a  committee  escaped  reference  to  a  stand- 
ing committee.  If,  after  debate  in  the  committee  of  the  whole, 
imperfections  remained,  a  bill  might  be  committed  to  a  standing 
committee,  but  such  aid  was  seldom  demanded.  As,  in  the  course 
of  time,  private  members  came  more  and  more  to  introduce  meas- 
ures upon  their  own  responsibility,  the  question  of  keeping  clear  the 
calendar  of  the  committee  of  the  whole  became  serious.  Hence 
arose  the  modern  practice  of  referring  measures  upon  introduction 
to  standing  committees.  Thereafter  only  select  measures  ever 
reached  the  committee  of  the  whole. 

In  Pennsylvania  it  was  not  until  1813  that  standing  committees 
were  recognized  by  general  resolution  empowering  the  speaker  to 
appoint  them,4  and  it  was  not  until  1827  that  they  were  made  a 
regular  institution  by  the  rules.5  Their  chief  function  was  to  under- 
take orders  of  inquiry  at  the  command  of  the  House,  but  their  power 
to  report  by  bill  had  to  be  authorized  by  specific  resolution.  By 
1825,  however,  it  had  become  the  custom  to  grant  this  authoriza- 
tion by  blanket  resolution,  and  by  1830  the  right  of  standing  com- 
mittees to  report  by  bill  was  embodied  in  the  rules.6  Repeating  the 
experience  of  New  York,  reference  to  a  committee  upon  introduc- 
tion became  the  regular  procedure  when  individual  members  began 
to  present  measures  freely  from  the  floor. 

SELECTION  OF  COMMITTEES 

The  appointment  of  committees  is  today  a  principal  source  of 
the  speaker's  power,  for  the  practice  of  selection  of  committees  by 
the  house  has  met  with  negligible  acceptance.  The  Nebraska  House, 


.,  1830,  pp.  37-39. 
4  Pennsylvania  House  Journal,  1813,  p.  10. 
6  House  Rules  (1827)  No.  28. 
•  Sutherland's  Manual  for  Pennsylvania  (1830),  p.  81. 


38  Procedure  in  State  Legislatures 

however,  is  an  exception  in  that  it  has  a  committee  on  committees 
whose  selections  it  approves",  and  the  same  is  true  of  Utah.  Penn- 
sylvania after  one  trial  of  this  system  in  1913,  when  a  strong  pro- 
gressive element  sat  in  the  House,  has  returned  to  the  old  method 
of  appointment  by  the  speaker. 

Methods  of  appointment  of  senate  committees  differ  more 
widely.  In  the  majority  of  cases  the  selection  rests,  under  the  rules, 
with  the  president,  but  since  in  most  states  he  holds  his  office  by 
virtue  of  the  fact  that  he  is  lieutenant-governor  and  may  be  of  a 
political  faith  in  opposition  to  the  majority,  this  prerogative  is  some- 
times denied  him.  In  Oklahoma  the  constitution  prescribes  that 
senate  committees  shall  be  elected  by  majority  vote,7  and  in  five 
other  states  the  rules  specify  that  the  choice  shall  be  by  the  senate.8 
In  the  Senates  of  Kansas  and  Nebraska,  committees  are  selected 
upon  the  recommendation  of  a  committee  on  committees.  The 
committees  of  the  Vermont  Senate  are  chosen  by  a  group  of  three, 
viz.,  the  president,  the  president  pro  tern,  and  one  member  elected 
by  the  body,  but  the  right  to  overrule  their  appointments  is  re- 
served. In  Connecticut,  Delaware,  Missouri,  and  Pennsylvania 
the  selections  are  made  by  the  president  pro  tern,  who  is  also  the 
majority  leader. 

Since  the  president  of  the  senate  is  not  usually  a  member  of  that 
body,  his  committee  appointments  are  apt  to  be  dictated  by  the 
party  leader.  Indeed  the  actual  power  of  selection  is  so  commonly 
surrendered  that  a  recent  attempt  of  the  president  of  the  New  York 
Senate  actually  to  exercise  his  parliamentary  prerogative  evoked 
surprise.  Objecting  that  he  had  not  been  consulted  regarding  cer- 
tain appointments  which  he  did  not  approve,  he  refused  to  accept 
the  responsibility  of  promulgating  them.  The  party  organization 
thereupon  took  the  appointing  power  out  of  his  hands  and,  having 
vested  it  in  the  Senate,  put  through  the  slate  as  voted  in  caucus. 
However,  the  responsibility  for  the  appointments  was  lodged  clearly 
where  it  belonged.9 

The  minority  members  of  committees  in  New  York,  Illinois  and 
elsewhere  are  customarily  chosen  by  the  minority  leader,  the  speaker 

7  Oklahoma  Constitution,  Art.  V.,  Sec.  28. 
1  Illinois,  Ohio,  Rhode  Island,  Virginia  and  Wisconsin. 
•Albany  Knickerbocker  Press,  January  14,  15,  1915.     New  York  Times, 
January  14,  15,  1915. 


Committees  39 

being  satisfied  with  exercising  his  control  over  members  of  his  own 
party.10 

Usually  the  member  first  named  upon  the  committee  becomes 
chairman.  Because  of  the  loose  manner  in  which  committee  busi- 
ness is  conducted,  the  chairman  exercises  an  influence  greatly  in 
excess  of  that  enjoyed  by  similar  officials  in  Congress.  The  power 
to  designate  who  they  shall  be  is,  therefore,  highly  prized  by  the 
speaker.  In  view  of  the  abuse  to  which  this  power  may  so  easily  be 
put,  committees  should  be  permitted  to  choose  their  own  chairmen, 
as  is  done  in  both  houses  in  Rhode  Island  and  Wisconsin,  and  in  the 
West  Virginia  Senate.11 

Few  phases  of  legislative  procedure  have  evoked  more  criticism 
than  that  which  vests  the  committee  appointing  power  in  the 
speaker.  Without  doubt  it  renders  him  a  very  powerful  official,  not 
only  because  it  gives  him  control  over  measures  placed  in  the  hands 
of  trusted  worthies,  but  because,  by  granting  or  denying  committee 
places  as  rewards  and  punishments,  his  position  as  leader  is  strength- 
ened.12 Nevertheless,  it  is  possible  that  much  of  this  criticism  is 
unmerited  in  view  of  the  difficulties  of  apportioning  desirable  com- 
mittee berths  among  aspiring  candidates.  In  addition  to  due  care 
for  party  interests,  consideration  must  be  given  to  ability,  experi- 
ence, geographic  distribution,  et  cetera,  and  regardless  of  the  effort 
expended,  the  conscientious  speaker  is  apt  to  find  that  his  selections 
contain  sinister  combinations.  The  chairman  of  the  committee  on 
committees  in  the  Pennsylvania  House  of  1913,  who  figured  largely 
in  the  reform  of  the  rules  at  that  session,  reports  that  his  committee 
worked  night  and  day  in  an  attempt  to  distribute  places  fairly  and 
honestly,  yet  the  result  of  their  labor  drew  the  common  charge  that 
corrupt  interests  had  prevailed. 

NUMBER  AND  SIZE  OF  COMMITTEES 

In  many  states  the  very  number  and  size  of  committees  defeats 
the  purpose  of  their  existence.  The  energy  of  members  is  dissipated 

10  At  the  1915  session  of  the  Illinois  House  the  speaker  for  the  first  time  in 
years  named  full  committees  himself,  refusing  to  recognize  any  leaders  in  the  badly 
disorganized  minority.     < 

11  Under  the  Pennsylvania  Rules  of  1913  each  committee  elected  its  own 
chairman,  but  this  feature  was  dropped  when  in  1915  the  legislature  returned  to 
the  old  method  of  committee  appointments. 

12  Illustrations  are  familiar  to  all.    They  appear  clearly  whenever  the  selec- 
tion of  a  speaker  has  exposed  the  party  to  factional  disturbances. 


40  Procedure  in  State  Legislatures 

by  service  on  many  committees.  Meetings  must  often  be  scheduled 
at  inconvenient  hours  and  conflicts  occur  constantly.  Amid  such 
circumstances  a  reduction  in  number  through  combination  and 
elimination  becomes  the  first  condition  of  reform.  To  cite  extreme 
examples:  the  Iowa  House  has  sixty-one  committees,  ranging  in 
size  from  nine  to  forty  members,  membership  on  eight  being  the 
minimum  for  any  one  representative.  In  addition  to  a  committee 
on  agriculture  of  thirty-nine  members  there  are  committees  on  dairy 
and  food,  animal  industry,  drainage,  horticulture,  and  agricultural 
college.  There  are  nine  dealing  with  different  phases  of  education, 
in  addition  to  one  on  educational  institutions  with  twelve  mem- 
bers, and  one  on  schools  and  text  books  with  twenty-eight  mem- 
bers.18 The  Kansas  House  has  fifty-five  committees.  In  addition 
to  several  useless  ones,  such  as  federal  relations  and  immigration, 
there  are  six  dealing  with  subjects  which  could  more  easily  be 
handled  by  the  committee  on  agriculture,  six  dealing  with  matters 
of  education  and  five  with  municipal  affairs.14  The  Michigan 
Senate  with  thirty-two  members  has  sixty-two  committees,  fifteen 
of  which  could  be  grouped  under  one  on  education.15  The  Ken- 
tucky House  boasts  seventy  committees,  each  member  serving  on 

/  six,  and  in  Georgia  members  serve  on  an  average  of  nine.     Although, 
as  has  been  stated,  these  examples  are  somewhat  extreme,  Penn- 
^     sylvania's  average  of  five  places  per  member  is  typical  of  the  vast 
majority  of  states. 

Such  an  endless  multiplication  of  committees  would  of  course 
be  impossible  if  it  were  not  that  the  burden  of  work  is  confined  to  a 

/  few  of  the  more  important  while  others  meet  but  irregularly  through- 
out the  session.  Everywhere  the  committees  on  appropriations, 
judiciary,  and  municipal  affairs  will  be  found  crowded  with  work. 
Of  less  importance,  although  with  plenty  to  do,  will  be  found  com- 
mittees dealing  with  agriculture,  banking,  county  affairs,  educa- 
tion, corporations,  railroads,  fish  and  game,  and  roads  and  bridges. 
Then  follow  the  committees  whose  work  is  almost  negligible.  It 
has  been  stated  by  members  of  experience  that  twenty-three  of  the 
forty-one  committees  of  the  Pennsylvania  House  are  of  no  impor- 
tance and  could  readily  be  abolished.  Of  the  thirty-eight  com- 

18  House  Rules  for  1915. 
"  Rules  for  1915. 
»  Rules  for  1915. 


Committees  41 

mittees  of  the  Ohio  House  of  1915,  there  were  sixteen  which  con- 
sidered less  than  ten  bills  each  out  of  a  total  of  nine  hundred  and 
twelve  introduced.16  In  the  session  of  the  same  year  twelve  com- 
mittees of  the  Vermont  House,  eleven  of  the  Senate,  and  six  joint 
committees,  received  less  than  ten  bills  each.17  Evidently  some 
readjustment  is  needed.  A  few  committees  are  overwhelmed; 
others  never  meet. 

On  the  other  hand,  the  distribution  of  business  among  the  joint 
committees  in  Massachusetts  is  much  more  equitable,  only  seven  of 
the  thirty  in  a  recent  session  receiving  less  than  forty  bills.18  Ver- 
mont attempted  reform  at  the  1917  session  by  combining  sixteen 
committees  into  seven,  but  no  attempt  was  made  to  relieve  the 
more  congested.  In  Wisconsin  the  reform  has  been  worked  out  to 
its  logical  conclusions.  Senate  standing  committees  have  been  re- 
duced to  five  with  no  member  serving  on  more  than  one,  and  the 
number  in  the  House  which  consider  legislation  is  now  fifteen  with 
a  total  of  but  112  places  for  100  members.19  In  Rhode  Island,  also, 
members  serve  as  a  rule  on  but  one  committee. 

The  advantages  of  the  plan  are~obvlous.     Each  committee  be- 
comes an  important  part  in  the  legislative  system,  performing  a  de- 
cent amount  of  the  legislative  business.     Full  attendance  at  meet- 
ings is  possible  because  members  are  not  bothered  by  conflicting 
committee  schedules,  and  chairmen  do  not  have  to  exert  themselves 
to  secure  a  quorum.20     In  those  states  where  capitol  space  is  limited 
the  simple  matter  of  finding  rooms  for  a  multitude  of  meetings  is  ||' 
serious,  preventing  a  committee  from  enjoying  permanent  quarters.21  ^ 
While  under  a  system  of  few  committees  there  would  still  be  degrees 
of  importance;  and  experience  and  capacity  would  still  be  rewarded  | 
by  places  upon  the  leading  committees,  each  would  have  sufficient  | 
work  to  do.     Meetings  could  be  held  at  regularly  scheduled  hours  fe 
when  members  are  fresh  for  the  work.     By  devoting  their  whole  ti 
attention  to  the  business  of  one  committee,  legislators  could  become 

ie  Ohio  H.  J.  1915,  pp.  1947  et  seq. 

17  Report  of  Joint  Committee,  1917,  pp.  6,  7. 

18  Report  of  Joint  Committee  on  Procedure,  1915,  p.  36. 

19  S.  Rule  20;  H.  Rule  22.     This  was  accomplished  at  the  1913  session  when 
the  number  of  committees  was  cut  in  half.     (Ass.  J.  pp.  98-99.) 

20  It  is  a  general  complaint  that  committee  meetings  are  not  well  attended. 
Congress  has  the  same  difficulty. 

21  North  Carolina  and  Vermont  report  specific  difficulty  of  this  kind. 


42  Procedure  in  State  Legislatures 

specialists  along  the  lines  of  their  service.  Committee  proceedings 
would  possess  weight  and  dignity,  so  sadly  lacking  in  our  state  legis- 
latures, but  without  which  no  deliberation  can  be  a  success. 

The  opposition  to  a  rearrangement  along  the  lines  indicated 
comes  from  a  desire  to  multiply  honors.  Representatives  are  loath 
to  surrender  the  prestige  and  perquisites  derived  from  membership 
on  many  committees.  The  recent  progressive  wave  in  the  Illinois 
House  spent  itself  when  the  number  of  committees  had  been  re- 
duced from  sixty-seven  to  thirty-three,  with  each  member  serving 
on  from  five  to  eight,22  and  at  the  1915  session  of  the  Kansas  Senate 
a  motion  to  authorize  a  reduction  from  forty-one  to  twenty-one 
failed  without  a  roll  call.23 

REFEEENCE  OF  BILLS 

Upon  introduction  and  before  consideration  by  the  House,  a 
bill  is  referred  to  a  standing  committee  in  whose  possession  it  re- 
mains until  reported  back  or  until  the  committee  is  discharged. 
Except  in  rare  instances  the  presiding  officer  designates  which  com- 
mittee shall  receive  the  measure.  The  rules  often  permit  discussion 
at  this  point  by  providing  that  the  question  "  Shall  the  bill  be  re- 
jected?" may  be  raised,  but  this  never  occurs  in  practice.  Some- 
times reference  does  not  take  place  until  after  second  reading,  but 
in  such  cases  second  reading  usually  follows  immediately  upon  first. 
Consequently  nothing  is  gained  by  adherence  to  an  ancient  practice 
observed  by  Parliament,  inasmuch  as  with  us  the  merits  of  a  bill  are 
no  longer  debated  on  second  reading  and  afterwards  referred  to  a 
committee  for  review  of  the  details.24  In  Arizona  and  Ohio  the  bill 
imprinted  and  on  the  desks  of  members  before  reference.25 

When  bills  are  referred  by  the  presiding  officer  immediately 
upon  introduction  they  are  apt  to  be  distributed  more  or  less  at 
haphazard  among  the  various  committees.  Thus  in  Vermont, 
within  a  period  of  three  sessions,  woman's  suffrage  bills  were  sent  to 
committees  on  municipal  corporations,  internal  affairs,  temperance, 

22  H.  J.  1915,  pp.  132-133.  , 

»  S,  J.  1915,  p.  4. 

24  In  Arizona,  Louisiana,  Missouri  and  Ohio  the  rules  provide  for  reference 
after  second  reading,  but  as  the  constitutions  require  readings  to  be  on  separate 
days,  reference  is  delayed  one  day  after  introduction. 

26  Arizona  House  and  Senate  Rules  9;  Ohio,  House  Rule  73  and  Hughes' 
?' Parliamentary  Guide." 


Committees  43 

judiciary,  ways  and  means  and  grand  list.26  By  requiring  measures 
to  be  filed  with  the  clerk  previous  to  introduction  or  by  allowing  a 
day  to  intervene  between  introduction  and  reference  such  careless 
disposition  of  measures  can  be  avoided. 

In  at  least  three  states  the  speaker  has  been  deprived  of  his 
power  of  reference.  In  Ohio  and  Virginia  members  of  the  House 
designate  the  committee,  and  Maine  practice,  in  keeping  with  her 
system  of  joint  committees,  provides  a  joint  standing  committee 
whose  function  is  to  assign  bills  to  the  proper  committees.27  Per- 
mitting a  member  to  specify  what  committee  shall  consider  his  bill 
robs  the  speaker  of  a  great  deal  of  control  over  its  fate,  for  the  latter 
is  sure  to  have  at  least  one  committee  dominated  by  his  adherents. 
Even  if  committees  are  elected  by  the  house  his  power  is  large,  since 
his  reference  is  rarely  overruled  by  contest  on  the  floor. 

Where  joint  committees  are  used  as  extensively  as  in  Massa- 
chusetts and  Connecticut  the  process  is  a  little  more  involved. 
Reference  by  the  presiding  officer  in  one  house  must  be  confirmed 
by  the  other  and  when  such  concurrence  is  refused,  it  is  the  usual, 
although  not  the  invariable  practice,  for  the  first  house  to  recede 
from  its  position  and  to  pass  a  resolution  agreeing  with  the  new 
reference.  As  differences  of  this  sort  are  quite  frequent  the  ref- 
erence of  the  presiding  officer  is  constantly  checked  up  by  the  other 
house  and  his  own.28 

Formal  reference  by  the  speaker  before  the  assembled  house 
consumes  valuable  time  and  serves  no  useful  purpose.  Members 
pay  no  attention  to  this  order  of  business,  practically  denying  them- 
selves the  right  to  review  the  action  of  the  speaker.  Notice  of  the 
reference  in  the  daily  journal  or  calendar  is  quite  sufficient,  if  oppor- 
tunity is  given  to  move  to  revise  the  speaker's  action.  The  rules  of 
the  Virginia  House  require  the  clerk  to  refer  bills  in  accordance  with 
the  endorsement  of  the  proponent  and  to  enter  the  fact  on  the 
journal.  He  is  then  to  prepare  a  daily  list  of  all  bills  offered  with 
their  patrons  and  references.29  A  member  thus  learns  readily  what 

26  Memorandum  of  Vermont  Legislative  Reference  Bureau,  1916. 

27  This  procedure  was  adopted  as  an  improvement  over  the  old  method  of  con- 
current reference. 

18  See  Journals  of  Massachusetts  and  Connecticut.  Maine,  as  noted  above, 
employs  a  joint  committee  on  reference. 

29  House  Rules  7,  37  (1915).  Urged  by  the  Massachusetts  Joint  Committee 
in  its  report  on  the  reform  of  the  rules,  1915,  p.  33, 


44  Procedure  in  State  Legislatures 

disposition  has  been  made  of  his  measures,  for  the  general  confusion 
on  the  floor  and  the  sing-song  manner  in  which  reference  of  bills  is 
carried  on  precludes  even  the  most  diligent  from  profiting  by  public 
announcement. 

COMMITTEE  MEETINGS 

The  efficiency  of  the  committee  system  may  be  impaired  by 
inconvenient  hours  of  meeting.  Too  often  the  program  of  the  house 
makes  no  allowance  for  the  time  necessary  for  the  meetings  of  the 
committees.  As  a  consequence  they  frequently  are  compelled  to 
snatch  a  few  minutes  at  recess  or  at  the  close  of  the  day  when  all  are 
tired  and  anxious  to  get  home.30  Although  forbidden  by  the  rules, 
meetings  during  a  sitting  of  the  house  are  common  toward  the  end 
of  the  session.  Morning  seems  to  be  the  best  time  for  committee 
meetings  for  then  the  members  are  fresh  for  the  most  important 
/  part  of  their  legislative  duties.  The  customary  hour  in  Massachu- 
|  setts  is  10 : 30  a.m.  Members  accordingly  plan  to  devote  their  morn- 
ings to  committee  work,  which  therefore  becomes  as  regular  a  part 
of  the  routine  as  the  session  on  the  floor.  Occasionally  meetings 
are  held  at  night^but'only  in  order  to  clear  up  a  crowded  calendar. 

COMMITTEE  SCHEDULES 

A  sine  qua  non  of  effective  committee  work  is  the  maintenance 
of  a  fixed  schedule  of  meetings,  which  should  be  arranged  by  a  re- 
sponsible person  and  to  which  members  should  strictly  adhere. 
The  practice  of  drawing  up  a  loose  schedule  at  an  informal  con- 
ference of  several  chairmen  provokes  conflicts  and  ends  in  holding 
meetings  whenever  a  quorum  can  be  gotten  together.  Moreover, 
if  choice  of  time  is  left  to  the  convenience  of  the  individual  members, 
meetings  are  most  numerous  in  mid-week,  with  the  consequence 
that  the  house  calendar  is  crowded  on  three  days  a  week  with  bills 
reported  out,  but  light  on  other  days.  Stated  sessions  of  committees 
would  go  far  towards  keeping  each  day's  business  uniform.31  Fur- 
thermore, adherence  to  a  fixed  schedule,  permitting  special  meetings 
only  after  one  day's  notice,  removes  the  old  evils  of  "snap  meetings." 

10  Discussed  in  the  Bulletin  of  the  Nebraska  Bureau,  Procedure  in  the 
Forty-eight  States,  p.  17.  In  Arizona  sessions  frequently  convene  to  insure  pres- 
ence of  members  and  recess  immediately  for  committee  work. 

81  Recommended  by  the  Vermont  Special  Committee,  1917. 


Committees  45 

It  has  not  been  uncommon  for  a  meeting  to  be  held  without  the  cus- 
tomary announcements,  at  midnight  or  other  convenient  hour,  at 
which  only  the  friends  of  the  measure  could  appear.  Afterwards 
the  bill  might  be  reported  out  at  any  time  to  an  unsuspecting  legis- 
lature and  rushed  through  before  the  opposition  regained  con- 
sciousness. 

Few  states  have  attempted  to  introduce  system  into  their  com- 
mittee schedules.  To  do  so  involves  a  surrender  in  part  of  each 
committee's  freedom  of  action  and  is  at  variance  with  the  feeling 
that  somehow  it  is  beneath  the  dignity  of  a  committee  to  allow  itself 
to  have  a  schedule  imposed  upon  it.  A  measure  of  progress  has, 
however,  been  made.  In  the  1915  session  the  Nebraska  Legisla- 
tive Reference  Bureau  submitted  a  plan  of  committee  meetings 
which  was  followed  in  the  main,  and  in  California  a  committee  is 
ordinarily  appointed  for  the  same  purpose.  The  presiding  officers 
of  the  South  Dakota  houses,  in  consultation  with  others,  work  out 
a  schedule  for  the  session,  and  in  New  York  the  various  chairmen 
meet  with  the  clerk  and  arrange  a  schedule  which  is  carried  out 
quite  successfully.  In  Minnesota  a  measure  of  responsibility  for 
arrangement  of  committee  meetings  is  placed  by  the  rules  upon  the 
rules  committee.32  The  attitude,  however,  of  most  legislators  is 
illustrated  by  the  refusal  of  the  Vermont  legislature  in  1917  to  adopt 
an  elaborate  schedule  of  meetings  which  aimed  to  cure  much  of  the 
old  evil. 

If  committee  schedules  are  to  be  made  a  complete  success  it  is 
best  that  they  be  arranged  by  someone  outside  the  house,  who  can 
devote  the  necessary  attention  to  the  details.  The  smoothness 
with  which  the  Massachusetts  system  works  is  due  largely  to  the 
effort  of  the  person  in  charge  of  the  weekly  bulletins,  whose  duty  it 
is  to  confer  with  the  different  committee  chairmen  and  clerks  and  to 
arrange  a  schedule  of  meetings  accordingly. 

The  value  of  committee  deliberations  would  be  enhanced  if  they 
were  to  proceed  according  to  calendars  announced  beforehand,  but 
the  nearest  approach  to  this  innovation  occurs  in  announcement  of 
committee  hearings.33  In  Massachusetts  this  latter  serves  virtually 

82  Assembly  Rule  19  permits  variations  from  this  schedule  only  on  one  day's 
notice  or  a  call  of  the  majority. 

83  Committee  calendars  were  urged  by  the  Progressives  in  the  New  York 
Assembly  in  1913  but  to  no  avail.     (Journal,  p.  19.)     A  resolution  offered  recently 


46  Procedure  in  State  Legislatures 

as  a  calendar,  since  custom  secures  for  each  bill  a  public  hearing. 
Frequently  in  this  state  committee  action  is  taken  in  executive 
session  at  the  time  of  the  hearing  although  it  may  be  postponed  to 
a  certain  day,  but  inasmuch  as  regular  executive  sessions  are  held  at 
stated  intervals  members  know  when  certain  measures  are  to  come 
before  the  committee  for  final  action.34 

It  is  generally  accepted  that  an  opportunity  for  a  hearing 
should  be  given  on  each  measure  and  that  notice  of  same  should  be 
published  in  a  way  that  all  interested  ma}^  have  an  opportunity  to 
attend.  Massachusetts  publishes  twice  a  week  a  bulletin  of  hearings 
which  is  copied  by  the  newspapers,  and  daily,  at  2:00  p.m.,  a  printed 
list  is  issued  of  all  assignments  for  the  morrow.  Notices  are  also 
sent  to  petitioners.  In  New  York,  Illinois  and  Wisconsin  notices 
of  hearings  are  published  in  weekly  bulletins.  In  whatever  manner 
the  notice  may  be  published,  it  is  the  general  rule,  to  which  Massa- 
chusetts is  an  exception,  that  hearings  are  granted  at  the  will  of  the 
party  leaders  and  not  as  a  matter  of  right.  An  old  trick  is  to  fix  a 
date  and,  if  the  legislation  involved  is  unwelcome  to  the  bosses,  to 
postpone  the  hearing  when  the  advocates  of  the  measure  have 
assembled  their  forces.  Thus  the  latter  are  worn  out  by  successive 
postponements. 

The  importance  of  committee  deliberation  is  recognized  in 
eleven  state  constitutions  by  provisions  requiring  committee  action 
on  bills.35  The  constitutions  of  Alabama  and  Virginia  require  that 
the  committee  be  in  session  to  consider  the  bill.  This  is  the  simple 
principle  that  no  business  should  be  transacted  except  in  regular 
session  with  a  quorum  present,  although  the  rules  of  but  few  legisla- 
tures mention  the  matter  of  a  committee  quorum  at  all.36  Regard- 
less of  the  constitutional  provision  in  Pennsylvania  directing  that 
there  shall  be  a  committee  report  on  each  bill,  committees  fre- 
quently report  without  a  meeting.  The  chairman  may  secure  the 
individual  assent  of  a  majority  of  his  committee,  or  late  in  the 
session  he  may  merely  rise  in  the  House  and  ask  if  any  members  of 

in  the  Illinois  House  authorizing  notice  to  committee  members  of  bills  scheduled 
for  consideration  died  in  committee.  H.  J.  1915,  p.  342. 

84  Frothingham,  supra,  p.  106. 

35  Index-Digest,  State  Constitutions,  p.  839. 

88  In  Illinois,  Iowa,  Kentucky,  Minnesota,  New  York,  West  Virginia,  and 
Wisconsin  a  majority  shall  constitute  a  quorum  under  the  rules.  In  California 
tbe  decision  is  left  to  the  committee  although  it  shall  never  be  less  than  one-third. 


Committees  47 

his  committee  are  opposed  to  his  measure,  and  if  strong  objection 
does  not  appear  he  reports  the  bill  favorably.  Against  such  pro- 
cedure a  point  of  order  that  a  bill  was  not  considered  in  committee 
will  not  be  sustained  as  it  is  not  competent  for  the  chair  to  go  back 
of  the  committee  report.37  Proxy  votes  are  also  an  evil  and  where 
they  are  admitted  it  is  difficult  to  maintain  committee  work  on  a 
high  plane.  New  York  has  recently  forbidden  their  use. 

COMMITTEE  RECORDS 

The  general  custom  of  "the  short  roll  call/'  by  which  measures 
reported  favorably  pass  the  house  without  an  actual  division,  gives 
to  committees  the  power  of  life  and  death  over  the  vast  majority  of 
legislative  proposals.  Yet  final  action  is  commonly  taken  in  secret 
session.  The  rules  of  Ohio  and  Florida  require  that  all  committee 
meetings  be  public,  but  these  are  exceptions  and  the  procedure  in 
New  York  is  typical.  Committees  have  an  open  session  and  an 
executive  session.  Different  members  may  appear  at  the  open 
session  and  call  up  bills  they  have  introduced,38  but  at  the  executive 
session  all  outsiders  are  -excluded.  Here  the  discussion  is  strictly 
secret  and  no  information  concerning  it  is  to  be  divulged  except 
through  the  official  records.39 

But  to  open  committee  deliberations  to  the  public  is  not  suffi- 
cient alone  to  fix  responsibility  definitely,  and  the  most  common 
device  for  turning  the  searchlight  upon  the  dark  recesses  of  com- 
mittee action  has  been  to  require  records  of  their  proceedings  to  be 
kept.  Committee  records  in  one  form  or  another  have  been  adopted 
by  the  rules  of  one  or  both  houses  in  fifteen  states.  The  record  in 
Wisconsin  is  most  complete.  It  includes  the  time  and  place  of 
hearings  and  meetings,  the  attendance  of  members,  the  names  of 
persons  appearing  before  the  committee  with  the  firms  they  repre-  ]/ 
sent,  and  the  votes  of  members  on  all  questions.  The  chairman  is 
charged  with  the  responsibility  for  its  keeping  and  a  copy  follows 
the  bill  when  reported  to  the  house.  It  is  to  be  accessible  to  the 

»7  Pa.  H.  J.,  1868,  pp.  713-714;  1901,  p.  303;  and  elsewhere. 

38  Some  houses  require  by  rule  that  the  sponsor  of  a  measure  be  notified  when 
it  is  to  come  up  in  committee;  others  only  if  the  report  of  the  committee  is  to  be 
adverse. 

39  1916  Clerk's  Manual,  N.  Y.,  pp.  530-531.     Where  such  courtesy  prevails 
the  necessity  for  an  official  report  of  all  proceedings  is  increased. 


48  Procedure  in  State  Legislatures 

public  and  after  the  session  is  filed  with  the  secretary  of  state.40 
For  the  sake  of  making  it  easily  available  in  order  that  its  purpose 
may  not  be  defeated,  it  would  be  wise  to  make  the  record  of  votes 
an  integral  part  of  the  committee's  report.  It  would  then  appear 
in  the  journal  and  would  be  preserved  for  all  time.  The  Progres- 
sives of  the  New  York  Assembly  of  1913  secured  the  adoption  of  a 
rule  that  the  report  of  the  committee  must  contain  the  names  of  the 
members  present  when  action  was  taken  and  their  vote,  these  to  be 
entered  on  the  journal,41  but  as  a  matter  of  fact  the  journal  gives 
only  the  names  of  those  who  favored  the  report.  Ohio  and  Ken- 
tucky accomplish  practically  the  same  result  by  requiring  that  all 
in  favor  of  the  report  sign  it,  their  signatures  being  spread  on  the 
journal.  The  advantage  in  recording  the  votes  of  committees  on 
the  journals  is  in  the  wider  publicity  given  them  arid  the  greater 
assurance  that  they  will  be  preserved,  the  full  minutes  being  filed 
in  the  secretary  of  state's  office. 

The  experience  of  the  Illinois  House  demonstrates  that  merely 
to  pass  a  rule  requiring  that  committee  records  be  kept  may  be  of  no 
effect.  A  rule  for  keeping  records  similar  to  the  Wisconsin  rule  was 
adopted  at  the  1913  session,  but  at  the  end  no  deliveries  were  made 
to  the  secretary  of  state  as  had  been  provided.42  At  the  following 
session  complaint  was  early  made  that  bills  were  being  reported  un- 
accompanied by  a  report  of  the  roll  call,43  and  it  is  doubtful  if  Illinois 
has  even  yet  succeeded  in  her  purpose.  Had  the  votes  of  com- 
mittees been  entered  on  the  journals  the  members  could  not  have 
avoided  going  on  record,  for  it  would  have  been  in  the  power  of  the 
minority  to  have  made  trouble  by  protesting. 

The  publication  of  full  committee  records  will  go  far  towards 
introducing  regularity  in  committee  proceedings,  and  to  this  end 
they  should  contain  more  than  a  statement  of  the  vote  upon  the 
report  to  the  house;  they  should  include  the  votes  on  every  ques- 
tion put  to  the  committee,  as  the  Wisconsin  rules  provide.  By  turn- 
ing light  upon  committee  proceedings  the  members  would  be  brought 

40  Wisconsin  Joint  Rule  6. 

41  See  Assembly  Journal,  1913,  p.  19,  and  Rule  21. 

42  Bulletin,  Legislative  Voters'  League  of  Illinois,  Nov.  20,  1914. 

43  House  Resolution  No.  53,  1915  H.  J.,  p.  237.     This  was  a  resolution  to 
investigate  the  breaches  of  the  rule  but  was  never  reported  out  of  committee. 
Statement  of  Mr.  Shurtleff  of  the  Rules  Committee  bears  out  the  above. 


Committees  49 

to  give  this  phase  of  their  work  the  attention  it  deserves.  Com- 
mittees would  be  unlikely  to  smother  important  legislation  by  fail- 
ure or  refusal  to  report  inasmuch  as  responsibility  could  be  easily 
located,  but  naturally,  reform  of  this  nature  is  steadily  opposed  by 
the  leaders  of  the  "old  guard."  For  example,  when  the  proposal 
under  consideration  was  offered  at  the  last  session  of  the  New  Jersey 
House  it  was  defeated  by  the  argument  of  a  leader  that  the  power  to 
discharge  a  committee  was  sufficient  protection  against  possible 
iniquities  therein.44 

Committee  work  can  be  much  facilitated  by  the  employment 
of  expert  clerks  to  look  after  the  drudgery  of  details.  To  this  end 
it  would  be  well  to  organize  all  clerical  assistance  to  committees 
under  a  head  clerk  of  committees  with  a  permanent  tenure  of  office. 
The  success  of  the  Massachusetts  system  is  in  part  due  to  the  effort 
expended  by  the  clerks.  Although  the  custom  is  to  appoint  the 
youngest  member  of  the  committee  as  clerk  yet  his  position  in  the 
next  legislature  is  dependent  upon  the  ability  with  which  he  handles 
the  affairs  of  his  committee,  and  if  he  performs  his  duties  with  suc- 
cess the  way  is  opened  to  coveted  places  later. 

JOINT  COMMITTEES 

The  system  of  joint  committees,  highly  developed  in  Massa- 
chusetts, Maine  and  Connecticut,  has  produced  excellent  results. 
In  Massachusetts  all  except  judiciary  and  ways  and  means  are  joint; 
judiciary  usually  sitting  as  a  joint  committee  and  ways  and  means 
sitting  separately  as  a  double  check  on  money  bills.45  With  the 
exception  of  the  latter  committee  it  will  be  observed  from  the  lists 
of  committees  in  the  three  states  where  the  joint  system  prevails, 
that  the  separate  house  committees  are  concerned  with  the  business 

44  The  Philadelphia  Record,  Jan.  10,  1917. 

NOTE  : — The  argument  presented  against  a  proposal,  made  during  the  general 
revision  of  the  rules  of  Congress  in  1880,  that  the  report  of  a  committee  shall  in- 
clude the  names  of  the  members  concurring,  in  reality  sets  forth  two  good  reasons 
for  the  system  of  committee  records  advocated  above.  It  was  objected  that  a 
member  would  have  to  scrutinize  every  bill  before  his  committee  and  come  to  a 
deliberate  conclusion  on  it,  and  that  the  confidential  element  in  committee  action 
would  be  destroyed.  (Congress.  Record,  46  Cong.,  2  Sess.,  p.  826.) 

45  All  money  bills  must  pass  through  the  individual  scrutiny  of  the  ways  and 
means  committee  of  each  house,  although  they  may  have  been  acted  upon  earlier 
by  another  committee. 

5 


50  Procedure  in  State  Legislatures 

and  procedure  of  each  house  as  a  unit  in  itself,  and  that  matters 
necessitating  concurrent  action  are  delegated  to  joint  committees. 
The  house  membership  on  joint  committees  greatly  exceeds  the 
senate,  in  Massachusetts  the  ratio  being  eight  to  three.  They  act 
and  vote,  however,  as  a  unit;  there  is  no  house  rivalry.  They  are, 
therefore,  joint  committees  in  reality.  The  rule  in  Massachusetts 
is  that  bills  are  to  be  reported  back  to  either  branch,  having  reference 
to  an  equal  distribution  of  business  between  the  two,  except  that 
money  bills  must  go  first  to  the  House.  The  practice  also  permits 
a  bill  to  be  referred  to  two  joint  committees  in  turn  sitting  jointly, 
as  for  example,  a  bill  relating  to  the  sale  of  milk  and  cream  was 
turned  over  to  the  committees  on  agriculture  and  public  health. 

It  is  not  too  much  to  say  that  the  success  of  Massachusetts,  the 
state  in  which  the  committee  system  is  most  highly  developed,  is 
due  in  a  considerable  measure  to  her  joint  committees.  As  pointed 
out  by  Professor  Reinsch,  public  attention  tends  to  be  attracted  to 
joint  committees  more  than  to  innumerable  committees  of  both 
houses.46  Committee  sessions  consequently  become  orderly  and 
dignified.  Advocates  or  opponents  of  legislation  are  not  compelled 
to  plead  their  cause  twice,  and  duplication  of  clerical  duties  is  es- 
caped. Opportunity  is  given  to  reduce  the  number  of  bills  which 
the  houses  must  consider  by  combining  bills  on  the  same  topic  into 
one  which  embodies  the  good  points  of  all,47  and  a  broader  view  is 
possible  than  can  be  acquired  by  committees  of  a  single  house. 

The  objection  to  the  joint  committee  is  that  it  substitutes  a 
single  consideration  of  a  measure  for  consideration  by  each  house 
separately,  which  is  the  theory  of  the  bicameral  system,  and  on  this 
ground  Vermont  at  the  last  session  abolished  all  joint  committees.48 
But  even  granting  that  the  spirit  of  the  bicameral  system  is  violated, 
a  question  certainly  open  to  argument,  it  would  seem  that  the  rights 
of  both  houses  would  be  sufficiently  safeguarded  if  a  bill  passed  by 
one  house  were  received  by  the  other  as  with  a  favorable  report 
unless  the  committee  representation  of  that  house  declared  them- 

48  Reinsch,  "Legislatures  and  Legislative  Methods." 

47  This  is  successfully  accomplished  in  Connecticut  where  the  work  of  draft- 
ing the  substitute  is  turned  over  to  the  clerk  of  committees,  who  is  an  experienced 
official.    The  advantages  of  joint  action  are  admitted  also  in  those  states  whose 
rules  permit  joint  hearings.     Wisconsin  has  especially  availed  herself  of  this 
privilege. 

48  See  Report  of  the  Committee  to  Revise  the  Rules,  1917,  p.  9. 


Committees  51 

selves  as  opposed.49  As  long  as  opportunity  remained  for  one  body 
to  refer  a  measure  to  a  committee  of  their  own  number  the  matter 
of  separate  discussion  would  receive  all  the  attention  it  deserves. 

CONFERENCE  COMMITTEES 

In  case  of  serious  differences  between  the  two  houses  the  good 
offices  of  a  conference  committee  are  called  in.50  But  as  a  rule, 
amendments  proposed  by  one  house  are  generally  adopted  by  the 
other  and  consequently  there  are  few  difficulties  serious  enough  to 
call  for  conferences.51  An  examination  of  the  journals  will  disclose 
that  they  are  seldom  employed  until  late  in  the  session  when  the 
rush  of  the  closing  hours  is  impending;  that  they  are  seldom  unsuc- 
cessful; and  that  their  reports  are  universally  adopted.  The  situa- 
tion is  therefore  charged  with  possibilities  for  evil  in  the  opportunity 
afforded  for  making  trades  which  are  seldom  investigated  by  the 
house  as  a  whole.  The  general  parliamentary  law  that  the  report 
of  a  conference  committee  cannot  be  amended  in  either  house  52 
increases  the  inclination  to  accept  any  compromise  the  committee 
may  offer.  The  secrecy  of  proceedings  in  the  conference  is  in- 
creased by  the  rule  that  the  minority  of  the  committee  cannot 
report.53 

49  Suggested  in  memorandum  of  Vermont  Legislative  Reference  Bureau  pre- 
pared for  the  Legislature,  1916. 

60  The  first  constitution  of  New  York  provided  a  most  cumbersome  method 
of  managing  disagreements.    The  two  houses  were  to  meet  in  a  conference  man- 
aged by  committees  from  both.     (Constitution  of  1777,  Art.  XV.    Abrogated  in 
the  Constitution  of  1821.)     By  this  method  the  secret  bargaining  which  now  feat- 
ures the  work  of  committees  of  conference  was  avoided. 

61  At  the  1915  session  of  the  Illinois  Legislature  conference  committees  were 
used  but  eleven  times  and  in  each  case  the  report  was  adopted.    The  Oklahoma 
Legislature  of  the  same  year  adopted  the  reports  of  the  ten  conference  committees 
appointed,  and  in  Massachusetts  in  1916  nine  of  the  ten  conference  committees 
agreed  on  reports  which  were  accepted.     There  were  only  five  conference  com- 
mittees in  Indiana  at  the  1915  session.     These  cases  are  typical. 

62  Jefferson's  Manual   ^[  535.     In  California  enforced  by  Joint  Rule  9,  and 
in  Maine  by  J.  R.  13.     By  a  recent  decision  in  Pennsylvania  a  conference  com- 
mittee report  was  permitted  to  be  amended  by  a  concurrent  resolution.     (Legis- 
lative Journal,  1913,  p.  5230.)     Otherwise  the  formula  must  be  to  recommit  by 
concurrent  resolution  with  instructions  to  amend.     The  rules  of  some  legislatures 
allow  no  other  action  than  acceptance  or  rejection. 

63  5  Hinds  6406;  Pa.  H.  J.  1850,  pp.  1216-1218. 

M  See  Index-Digest,  State  Constitutions,  pp.  838,  842-843. 


52  Procedure  in  State  Legislatures 

In  order  to  bring  the  conference  report  to  the  attention  of  the 
members,  who,  as  we  have  seen,  are  quite  willing  to  accept  on  faith 
the  compromise  presented  to  them,  it  is  sometimes  required  that  it 
be  printed  and  on  the  desks  of  the  members  before  final  vote.  This 
becomes  a  constitutional  mandate  whenever  the  constitution  re- 
quires the  printing  of  amendments  or  of  the  bill  in  final  form.54 

DISCHARGE  OF  COMMITTEES 

A  bill  in  committee  is  out  of  the  hands  of  the  house  until  re- 
ported back  or  the  committee  is  discharged.  In  order  to  prevent 
the  quiet  chloroforming  of  bills  without  the  committee  going  on 
record,  possible  when  bills  are  retained  indefinitely,  the  rules  in 
twenty-five  states  provide  that  the  committee  must  act  within  a 
specified  time.  The  time  allowed  varies  from  four  days  in  Colorado 
to  twenty-five  in  Minnesota,  although  it  is  unusual  to  enforce  this 
limit  with  any  rigidity.85  The  rules  of  the  California  Senate  pre- 
scribe that  committees  shall  report  "as  soon  as  practicable,"  and 
in  Kentucky  a  member  may  call  up  a  bill "  after  a  reasonable  time. " 66 

Although  it  is  clear  that  it  should  be  made  easy  to  place  a  bill 
before  the  house  after  it  has  been  in  committee  a  reasonable  time, 
to  place  a  bill  automatically  on  the  calendar  after  the  expiration  of 
a  certain  number  of  days,  as  is  done  in  North  Dakota,  robs  the  com- 
mittee of  legitimate  selective  power.  No  bill  should  adorn  the 
calendar  without  the  favorable  action  of  a  committee  unless  at  least 
25  per  cent  of  the  house  are  willing  to  assent  to  discharge  the  com- 
mittee. Thus  Delaware  permits  the  discharge  of  a  committee  after 
ten  days  upon  the  request  of  eighteen  (about  one-half  of  the  House)57 
and  New  Jersey  at  the  request  of  fifteen  (about  one-fourth)  upon 
one  day's  notice.58  In  Utah,  however,  the  speaker  alone  is  granted 
this  power  on  four  days'  notice,  and  in  North  Carolina  the  author 
may  recall  the  bill  after  five  days  in  committee.59 

68  For  experience  of  Iowa  see  Shambaugh,  "Statute  Law  Making  in  Iowa," 
p.  224.  For  experience  of  California  see  Hickborn,  "The  California  Legislature  of 
1909,  "p.  12. 

56  California  Senate  Rule  34;  Kentucky  House  Rule  37. 

67  House  Rule  27. 

58  House  Rule  67. 

59  House  Rule  3  (Utah) ;  North  Carolina  House  Rule  51.     In  the  senates  of 
Missouri,  North  Carolina  and  Ohio  and  in  both  houses  in  Indiana,  one  member 
may  demand  return  after  a  specified  time. 


Committees  53 

It  is  the  right  of  a  house  to  get  measures  before  it  easily.  Occa- 
sionally, however,  the  discharge  of  a  committee  is  made  so  difficult 
that  it  becomes  virtual  master  of  the  legislation  entrusted  to  its 
consideration.  The  rules  of  the  Illinois  House  require  a  majority 
vote  of  all  elected  to  discharge  a  committee;  twenty-four  hours' 
notice  must  be  given  and  the  motion  can  be  entertained  on  but 
three  days  a  week.60  New  York  likewise  requires  a  constitutional 
majority  to  discharge  a  committee,  but  the  motion  cannot  be  put 
until  the  committee  has  been  ten  days  in  possession  of  the  meas- 
ure.61 Under  such  circumstances  it  is  practically  impossible  for  the 
house  to  regain  possession  of  a  bill  in  the  hands  of  an  unwilling  com- 
mittee. The  situation  was  so  serious  in  Michigan,  where  under  the 
two-thirds  rule  a  minority  could  prevent  the  discharge  of  a  com- 
mittee throughout  the  session,  that  the  present  constitution  pro- 
hibits the  legislature  from  passing  any  rule  which  would  prevent  a 
majority  of  the  members  from  taking  a  bill  out  of  the  hands  of  a 
committee.62 

After  some  painful  experience  with  "pickling  committees"  the 
Pennsylvania  House  has  since  1913  permitted  sixty  members  (less 
than  one-third  of  the  body)  to  discharge  a  committee  which  had  held 
a  bill  ten  days.  Here  the  difficulty  had  been  further  complicated 
by  a  ruling  that  a  motion  to  discharge  a  committee  must  be  made 
under  the  order  of  resolutions,63  which  was  in  order  only  on  Monday 
night  and  Friday  morning.  The  House  never  met  on  Friday  and, 
as  the  session  on  Monday  night  was  limited  to  one  hour,  oppor- 
tunity to  move  discharge  rarely  came.64  But  in  the  reforms  of  1913, 
"Resolutions"  was  made  the  fourth  order  of  regular  business  for 
each  sitting. 

It  is  highly  advisable  that  all  committee  calendars  be  cleared 
up  and  all  business  reported  back  before  a  stated  time  in  the  session, 
a  practice  that  is  perfectly  feasible  where  the  time  for  introduction 
of  measures  is  limited.  Thus  one  portion  of  the  legislative  activity 

60  House  Rule  12. 

61  House  Rule  10. 

62  Debates,  Michigan  Constitutional  Convention,  1907-08,  p.  1421. 

63  H.  J.,  1878,  p.  742. 

64  House  Rule  62  for  1911  and  earlier.     If  the  motion  to  discharge  was  un- 
welcome to  the  organization  the  Monday  night  hour  was  always  consumed  before 
the  order  of  Resolutions  was  reached. 


54  Procedure  in  State  Legislatures 

would  be  gotten  over  with,  say  half  way  in  the  session,  leaving  the 
remainder  of  the  time  for  discussion  on  the  floor.  The  rush  and 
riot  of  the  closing  days  is  happily  avoided  in  Massachusetts  and 
much  credit  must  be  given  to  the  custom  by  which  the  presiding 
officers  keep  account  of  the  manner  in  which  committee  work  is 
proceeding,  comparing  progress  this  year  with  the  calendar  of  last 
year,  and  if  a  committee  is  found  to  be  dilatory,  they  do  not  hesitate 
to  apply  pressure.65 

There  exists  some  difference  of  opinion  as  to  the  advisability  of 
requiring  committees  to  report  on  all  matters  referred  to  them. 
The  Massachusetts  special  committee  of  1915  voiced  a  violent  pro- 
test against  the  practice  of  a  committee  report  on  every  measure. 
Committees  are  compelled,  they  argue,  to  consider  frivolous  meas- 
ures, and  the  calendars  are  crowded  with  adverse  reports  which  are 
seldom  overthrown  but  which  consume  the  time  of  both  houses. 
The  recommendation  was  accordingly  made  that  a  committee  unan- 
imous against  a  bill  need  not  report,  thus  opening  the  way  for  prompt 
consideration  of  the  more  important  matters.66  On  the  other  hand, 
it  is  urged  that  committees  be  compelled  to  report  every  measure 
and  that  the  house  take  formal  action  on  all.  But  it  is  a  useless 
waste  of  legislative  energy  to  require  committees  to  consider  meas- 
ures to  which  the  committee  is  unanimously  opposed  or  which  a 
reasonable  fraction  of  the  house  does  not  favor.  Although  mere 
silence  should  not  stifle  legislation  and  to  escape  committee  tyranny 
discharge  should  be  made  easy,  it  is  in  keeping  with  the  dignity  and 
responsibility  which  a  committee  should  feel  to  allow  it  discretion 
in  selecting  measures  upon  which  to  devote  attention. 

Where  committees  are  not  compelled  to  report  upon  each  meas- 

65  Joint  Rule  10  specifies  at  what  time  the  final  report  of  all  committees  must 
be  in,  which  time  may  be  once  extended.  Three  days  after  the  final  limit  com- 
mittees must  report  with  the  recommendation  that  the  bill  be  referred  to  the  next 
General  Court.  This  recommendation  is  of  course  perfunctory,  and  may  be  over- 
thrown without  opposition  from  the  committee,  although  it  requires  a  four-fifths 
vote  to  do  so.  This  permits  a  bill  to  be  killed  by  committee  by  mere  delay  unless 
an  overwhelming  majority  is  in  its  favor.  The  advantage,  however,  is  found  in 
that  it  gets  all  the  business  of  the  session  before  the  house  in  time  to  dispose  of  it 
in  an  orderly  manner. 

68  Committee  upon  Reform  of  Procedure,  1915,  report  pp.  43,  44.  In  1914, 
1431  matters  were  reported  adversely  by  unanimous  committee  vote.  These 
were  read  by  both  clerks  and  went  on  both  calendars.  Allowing  two  minutes  for 
each  measure,  sixteen  legislative  days  were  thus  consumed. 


Committees  55 

ure,  there  are  few  adverse  reports,  unfavored  measures  usually 
being  allowed  to  die  without  formal  action;  and  in  view  of  the 
common  difficulty  in  discharging  a  committee  this  is  the  surest  way 
to  kill  a  bill.  Where  no  legislation  is  permitted  to  die  in  committee 
a  negative  report  recommends  that  "the  bill  do  not  pass"  or  that 
"the  bill  be  indefinitely  postponed,"  and  is  commonly  adopted  by 
unanimous  consent.  The  question  is,  "Shall  the  bill  be  rejected?" 
or  "  Shall  the  report  be  adopted?  "  Vermont  found  that  if  the  ques- 
tion were  put  "Shall  the  bill  be  read  a  third  time?"  as  is  usual  for 
favorable  reports,  the  indication  being  towards  overturning  an  ad- 
verse judgment  of  the  committee,  a  committee  report  was,  by  the 
mere  inertia  of  members,  often  reversed  without  adequate  reason.67 
The  Pennsylvania  House  used  to  allow  a  bill  negatived  in  committee 
to  go  on  the  calendar  at  the  request  of  sixty  members  (less  than  one- 
third),  although  the  earlier  practice  had  been  that  such  bills  came 
up  for  consideration  as  those  reported  favorably.  In  1915  the 
sixty  rule  was  changed  to  a  majority  on  the  ground  that  because  it 
was  easy  to  get  sixty  members  to  place  a  negatived  bill  on  the  calen- 
dar, it  was  crowded  with  bills  which  ultimately  never  passed. 
Sometimes  the  lower  house  has  been  known  to  surrender  absolute 
veto  power  to  the  committees  by  making  an  unfavorable  report 
final.68  On  the  other  hand,  the  Senate  of  South  Carolina  per- 
mits a  negatived  bill  to  go  on  the  calendar  at  the  request  of  one 
member. 

In  accordance  with  the  principle  to  relegate  all  business  which 
does  not  require  deliberative  action  to  hours  when  the  house  is  not 
in  session,  and  to  publish  disposition  of  same  in  the  journals,  it  would 
be  well  to  abolish  the  formal  reading  on  the  floor  of  reports  of  com- 
mittees. There  is  no  good  reason  why  they  should  not  be  filed  with 
the  clerk,  published  in  the  journal  and  calendar,  and  opportunity 

67  The  form  of  the  question  was  changed  at  the  1917  session. 

88  The  custom  in  Missouri  is  to  pass  such  a  resolution  a  few  weeks  before  the 
close,  e.g.,  1913  H.  J.,  p.  745.  A  similar  resolution  was  presented  in  the  Indiana 
House  in  1915  in  order  to  seal  the  fate  of  the  female  suffrage  and  prohibition  meas- 
ures then  in  committee.  At  first  it  was  thought  to  have  passed  but,  in  conse- 
quence of  the  storm  stirred  up  by  the  absolute  surrender  to  a  committee,  the 
speaker  reversed  his  decision  on  the  ground  that  the  resolution  had  not  received 
the  constitutional  majority  required  by  the  rules.  (Indianapolis  News,  February 
24,  25,  1915;  Chicago  Tribune,  February  24,  1915.) 


56  Procedure  in  State  Legislatures 

given  to  move  rejection  on  the  floor.     If  the  report  is  favorable  the 
bill  could  move  automatically  to  second  reading.69 

STEERING  COMMITTEES 

No  discussion  of  the  committee  system  would  be  complete 
without  some  attention  to  steering  committees,  which  control  the 
time  of  the  legislature  to  a  greater  or  less  degree  in  approximately 
three-fourths  of  the  states.  Their  function  is  to  guide  the  house, 
especially  during  the  last  days  of  the  session,  through  a  calendar 
congested  with  bills  too  readily  placed  thereon.  The  theory  is  that, 
in  the  tumult  of  many  measures  competing  for  consideration,  no 
important  matter  must  be  allowed  to  go  by  default. 

The  confusion  attending  the  closing  days  of  the  average  legis- 
lature is  notorious  yet  natural  in  so  far  as  it  arises  from  the  indolence 
of  the  members  and  the  spirit  of  procrastination  which  dominates 
the  early  days  of  the  session.  Indeed,  the  very  existence  of  a  sifting 
committee,  designed  as  an  escape  from  a  crowded  calendar,  con- 
tributes toward  the  confusion  and  operates  in  turn  to  congest  the 
calendar,  since  members,  who  are  only  human,  know  that  a  way  out 
is  easy  and  convenient.  Furthermore  the  hesitancy  or  lack  of  cour- 
age displayed  by  the  standing  committees  in  killing  the  less  worthy 
measures  contributes  to  the  final  congestion  and  resultant  demand 
for  a  steering  committee.  Just  as  the  power  of  standing  committees 
developed  when  the  number  of  bills  introduced  had  become  too 
large  for  consideration  by  the  whole  house,  so  the  steering  committee 
emerged  when  measures  approved  by  the  standing  committees  in- 
creased until  a  further  selective  agency  became  an  irresistible 
temptation. 

Complaint  is  common  that  too  few  bills  are  checked  at  the  com- 
mittee stage.70  Statistics  of  legislatures  chosen  at  random  demon- 
strate that  in  view  of  the  hundreds  of  bills  considered,  committees 
are  too  lax  in  exercising  their  selective  function  and  that  many  more 

69  In  Illinois,  Kansas,  Massachusetts  and  Texas  reports  of  committees  are  not 
read  on  the  floor,  appearing  merely  in  the  journals.     In  Congress  bills  reported 
favorably  go  automatically  to  the  proper  calendars;  an  adverse  report  is  laid  on 
the  table  unless  a  request  to  place  the  bill  on  a  calendar  is  made  within  three  days. 
(Rule  XIII.) 

70  Replies  to  the  questionnaire  of  the  Nebraska  Legislative  Reference  Bureau 
(1913)  of  but  five  states  could  be  understood  as  expressing  that  committees  exer- 
cise courage  in  reporting  adversely. 


Committees  57 

bills  reach  the  debate  stage  than  the  house  can  dispose  of  conscien- 
tiously. Sometimes  the  sentiment  prevails  that  practically  all  de- 
serve a  fair  trial  on  their  merits  before  the  assembled  house.71  This 
shy  attitude  assumed  by  committees  towards  negative  reports  con- 
stitutes an  evasion  of  an  obligation.  At  the  1915  session  the  com- 
mittees of  the  Ohio  Senate  killed  but  26  per  cent  of  bills  introduced 
in  that  body,  while  only  49  per  cent  of  House  bills  met  their  fate  in 
the  house  committees.  In  Indiana  and  Kansas  less  than  50  per 
cent  were  stifled  in  committee  and  in  Michigan  less  than  40  per 
cent.72  The  percentage  of  committee  executions  to  total  number 
of  bills  considered  in  New  York  averages  about  thirty-five  in  the 
Assembly  and  thirty  in  the  Senate.73  The  lower  house  in  Illinois  is 
an  exception,  for  at  the  1915  session  committees  checked  more  than 
75  per  cent  of  the  bills  referred  to  them.  The  full  significance  of 
committee  slackness  is  clear  when  it  is  remembered  that  it  means 
that  each  house  has  on  its  calendars  from  four  hundred  to  fifteen 
hundred  bills  which  presumably  must  be  debated  and  disposed  of  in 
addition  to  those  which  come  from  the  other  branch  of  the  legisla- 
ture. Under  these  circumstances,  the  raison  d'etre  of  the  steering 
committee  is  obvious.74 

Steering  committees  vary  widely  in  the  several  commonwealths. 
In  some  they  are  a  mere  servant  occasionally  employed  as  a  means 
by  which  the  house  can  more  readily  express  its  will.  In  others 
they  are  in  fact  masters  of  the  legislature's  destiny,  in  which  case 
they  are  often  called  sifting  committees.  Steering  committees 
exist  in  the  most  innocuous  form  in  those  states  in  which  the  func- 
tion rests,  as  it  does  in  Congress,  with  the  regularly  appointed  rules 
committee,  which  may  report  a  special  order  to  facilitate  the  prog- 
ress of  a  measure.  If  they  are  sensitive  to  the  will  of  the  house  they 
merely  construct  an  expeditious  plan  by  which  legislative  business 
may  be  advanced  without  undue  obstruction.  They  therefore 
introduce  elasticity  into  the  daily  program  by  proposing  special 

71  In  South  Dakota  all  bills  except  those  of  the  most  trivial  character  are 
reported  favorably  from  the  committees.     (Statement  of  Dr.  Doane  Robinson, 
State  Historian.) 

72  Compiled  from  indices  of  the  several  journals  of  1915. 
71  Colvin,  "The  Bicameral  System,"  pp.  77  et  seq. 

74  Committees  deal  more  gently  still  with  bills  from  the  other  house.  In  Ohio 
scarcely  20  per  cent  of  Senate  bills  failed  in  house  committees,  and  but  7  per  cent 
of  House  bills  in  senate  committees. 


58  Procedure  in  State  Legislatures 

orders  altering  the  regular  routine  of  business,  since  the  house  is 
able  with  the  help  of  the  rules  Committee  to  suspend  the  regular 
order  of  business  without  the  delay  necessary  if  a  member  in  his 
individual  capacity  should  propose  the  same.75  In  Pennsylvania 
and  Massachusetts  reports  by  the  rules  committees  are  unusual, 
must  be  confined  to  a  single  measure,  and  must  be  adopted  by  a 
majority  vote.  The  California  House  retains  its  control  over 
" rules"  by  requiring  a  two-thirds  affirmative  vote  to  adopt  any 
modifications  brought  in  by  this  committee.  On  the  other  hand, 
the  Illinois  House  has  gone  to  the  opposite  extreme  by  providing 
that  any  special  order  proposed  by  the  rules  committee  stands  unless 
overthrown  by  a  majority  of  all  members  elected,76  and  the  same 
is  true  of  New  York.  The  rules  committee  thus  becomes  a  very 
powerful  group. 

Several  states  have  gone  further  than  a  mere  steering  com- 
mittee, which  controls  discussion  occasionally  when  time  is  precious, 
by  creating  what  is  known  as  a  sifting  committee  to  determine  what 
measures  shall  be  discussed  on  the  floor.  The  latter  is  made  the 
custodian  of  practically  all  bills,  the  house  restricting  itself  to  those 
measures  which  it  submits.  Usually  towards  the  close  of  the  session 
the  practice  is  to  adopt  a  resolution  by  which  the  make-up  of  the 
daily  calendar  is  delegated  to  a  committee.  All  bills  accordingly 
owe  their  advancement  to  this  committee,  the  house  having  vir- 
tually surrendered  its  selective  power.  The  Washington  House 
gives  complete  control  of  the  calendar  to  a  sifting  committee  which 
takes  charge  the  first  week  of  the  session.  In  Montana  after  the 
fortieth  day  the  steering  committee  reports  the  order  of  considera- 
tion of  all  bills  as  they  come  from  committee.77  Even  broader  are 
the  powers  of  the  calendar  committee  of  the  Kansas  House,  for  not 

75  The  rules  committee  of  the  New  York  Senate  has  in  the  last  few  years  as- 
sumed this  function  when  the  minority  has  proved  obstinate.  The  first  time  that 
it  interfered  in  the  order  of  business  seems  to  have  been  at  the  session  of  1897, 
when  a  special  order  limiting  debate  was  brought  in.  The  point  of  order  that  the 
proposed  change  would  require  one  day's  notice  was  not  sustained.  From  this 
the  power  of  the  committee  soon  extended  to  reporting  special  programs  for  the 
progress  of  a  measure. 

For  an  account  of  the  evolution  of  the  Rules  Committee  hi  Congress  see 
Alexander,  "History  and  Procedure  of  House  of  Representatives,"  Chapter  X, 
and  4  Hinds  3152,  et  seq. 

7«  House  Rule  12. 

77  Montana  H.  J.,  1915,  p.  353,  and  statement  from  State  Library. 


Committees  59 

only  does  it  arrange  bills  on  the  calendar  but  the  "fixing  of  times 
for  the  consideration  of  bills"  is  entrusted  to  it.78  In  Missouri  and 
Nebraska  the  sifting  committees  name  only  those  bills  which  take 
precedence  on  the  calendar,79  and  at  the  last  session  the  Missouri 
committee  was  restricted  to  naming  for  advancement  five  general 
bills  and  sixteen  private  bills  daily.  Formerly  the  number  had 
been  unlimited.80  The  power  of  the  sifting  committee  of  the  Iowa 
House  has  been  similarly  reduced  at  the  last  few  sessions  by  exempt- 
ing from  their  authority  appropriation  bills,  special  orders  and  bills 
alreadyj  on  the  calendar  when  the  committee  takes  charge.  As 
pointed  out  in  a  recent  study  of  the  Iowa  Legislature  these  restric- 
tions make  the  committee  an  agency  for  preventing  rather  than 
promoting  legislation  in  that  it  customarily  holds  bills  until  with- 
drawn by  the  House.81  The  House  does  its  own  selecting  through 
the  power  to  make  any  measure  a  special  order. 

A  most  extreme  example  of  a  sifting  committee  has  been  de- 
veloped in  the  New  York  Assembly  through  the  augmented  power 
conferred  upon  the  rules  committee  throughout  the  last  days  of  the 
session.  The  system  is  so  notorious  that  a  brief  review  of  its  de- 
velopment may  be  of  interest. 

As  early  as  1832,  a  committee  of  nine  was  created  with  unusual 
selective  functions.  It  could  by  unanimous  vote  refer  a  bill  await- 
ing action  by  the  committee  of  the  whole  to  a  select  committee  to 
report  complete,  i.e.,  ready  for  final  passage,82  and  in  this  manner  a 
bill  might  escape  debate  until  it  came  up  for  final  vote.  This,  how- 
ever, does  not  constitute  an  exact  precedent  for  the  present  rules 
committee,  for  as  yet  standing  committees  had  not  been  developed 
to  remove  'unworthy  measures  from  consideration  by  the  house. 
The  purpose  was  merely  to  relieve  the  calendar  of  the  committee  of 
the  whole  upon  which  were  placed  all  bills  introduced  by  private 
members,  but  nevertheless  the  arrangement  did  not  escape  criticism. 
In  1857  the  select  committee  on  rules  deprecated  the  practice  and 
condemned  the  transaction  of  business  through  "  guiding  com- 

78  Kansas  H.  J.,  1915,  p.  540,  Resolution  37.    It  is  common  for  the  com- 
mittee to  limit  debate  to  twenty  minutes  on  one  measure. 

79  Missouri  H.  Res.  p.  884,  Journal  1915.    Statement  of  Nebraska  Legisla- 
tive Reference  Bureau. 

80  Missouri  H.  J.,  1913,  pp.  1301-1308. 

81  Shambaugh,  "Statute  Law  Making  in  Iowa,"  pp.  545  et  seq. 

82  Assembly  Journal,  1832,  p.  363. 


60  Procedure  in  State  Legislatures 

mittees"  as  fruitful  of  hasty,  improvident  and  fraudulent  legisla- 
tion.83 

But  the  pressure  on  the  calendar  increased  and  in  1872  a  com- 
mittee was  created  with  power  at  any  time  to  report  bills  of  a  general 
nature,  which  were  then  placed  upon  a  preferred  calendar  having 
precedence  over  unfinished  business.84  This  special  privilege  was 
denied  at  the  next  session,  but  in  1886  a  new  committee  became  the 
recipient  of  the  old  power.85  The  latter  committee  was  abolished 
in  1890  to  be  followed  by  the  all-powerful  rules  committee  of  1892. 

In  the  session  of  this  year  the  rules  were  amended  to  provide  that 
all  motions  to  make  a  bill  a  special  order,  or  to  suspend  the  rules  for 
the  purpose  of  reading  a  bill  out  of  its  regular  order,  be  referred  to 
the  committee  on  rules.  This  committee  was  empowered  to  report 
at  any  time  and  its  decision  was  final  unless  overthrown  by  two- 
thirds  of  the  members  present.86  The  next  year  the  exercise  of  this 
unusual  power  of  determining  what  measures  should  be  promoted 
was  restricted  to  the  last  ten  days  of  the  session,87  and  this  time 
limit  remains  today.88  The  number  required  to  overturn  a  report 
of  this  all-powerful  committee  was  reduced  in  1900  from  two-thirds 
to  a  simple  majority  vote,  but  nevertheless  its  judgment  remains 
wellnigh  final  since  the  program  which  it  presents  is  in  practice 
never  overthrown.  When  it  is  also  remembered  that  it  requires  a 
majority  of  all  the  members  elected  to  instruct  the  rules  committee 
to  report,  its  obstructive  authority,  during  the  last  days  of  the  ses- 
sion, as  well  as  its  power  to  accelerate,  is  seen  to  be  immense.  Fur- 
thermore the  time  in  which  " Rules"  is  in  the  saddle  is  invariably 
extended  beyond  the  prescribed  ten  days  by  the  simple  precaution 
of  setting  a  day  for  adjournment  ahead  of  the  date  on  which  the 
legislature's  business  can  possibly  be  completed.89 

It  is  the  custom  in  New  York  further  to  strengthen  the  position 
of  this  committee  by  a  resolution  towards  the  close  under  which  all 
matters  pending  before  the  various  other  committees  are  referred 

83  New  York  Assembly,  Document  No.  7,  1857. 

84  New  York  Assembly  Journal,  1872,  p.  603. 

85  New  York  Assembly,  Document  No.  5,  1887. 

86  Assembly  Journal,  1892,  p.  484. 

87  Assembly  Journal,  1893,  p.  2002. 

88  New  York  Assembly,  Rule  24. 

89  In  1911  the  rules  committee  was  in  charge  from  May  8th  to  October  6th. 
As  a  rule  it  governs  for  a  month  each  session. 


Committees  61 

to  it.  Thenceforth  " Rules"  may  be  said  to  be  the  only  committee 
functioning.  As  bills  in  its  possession  are  reported  out,  they  are 
made  special  orders  on  second  and  third  reading. 

It  would  be  hard  to  imagine  a  method  by  which  a  house  could 
more  completely  subject  itself  to  the  control  of  three  members  and 
the  speaker,  who  is  ex-officio  chairman  of  "Rules,"  and  still  retain 
the  form  of  a  freely  deliberating  body.  From  the  very  beginning 
the  committee  seems  to  have  abused  its  power,  the  spirit  of  the 
standing  rules  being  wholly  repudiated.  Bills  from  the  bottom  of 
the  calendar  were  moved  to  the  top  without  attracting  the  atten- 
tion which  would  have  followed  a  motion  put  to  the  house.  The 
fate  of  all  measures  fell  immediately  into  the  hands  of  these  men, 
and  although  " Rules"  quickly  began  to  monopolize  the  time  of  the 
Assembly,  it  did  not  act  with  the  discretion  which  would  have  served 
the  end  advocated,  viz.,  the  advancement  of  important  business 
which  otherwise  might  never  have  reached  final  action.90  The 
completeness  with  which  individual  members  surrendered  them- 
selves to  the  party  bosses  appears  from  the  two-thirds  vote  neces- 
sary, until  1913,  to  instruct  " Rules"  to  report.  But  even  under 
the  modified  rule  of  a  simple  majority  the  committee  is  rarely  com- 
pelled to  act,  and  probably  the  first  instance  in  which  this  was  ac- 
complished occurred  on  the  closing  day  of  the  1912  session  after  a 
majority  of  members  had  informally  petitioned  the  committee  to 
release  the  bill  in  question  9l 

The  rules  committee  of  the  New  York  Assembly  does  not  re- 
lieve the  congestion  of  the  closing  hours  of  the  legislature.  If  it  did 
there  would  be  some  justification  for  its  existence.  Its  influence 
extends  far  beyond  a  mere  selection  of  measures  to  be  taken  up  by 
the  Assembly,  for  by  careful  managing  it  can  secure  the  passage  of 
measures  during  the  final  rush  which  would  meet  with  certain  de- 
feat in  the  earlier  stages  of  the  session,  and  refusal  to  report  a  meas- 
ure assures  its  destruction.  Enjoying  as  much  parliamentary  power 
as  the  English  cabinet,  the  rules  committee  nevertheless  escapes  any 
measure  of  responsibility  before  the  people.  The  nullification  of 
its  present  broad  functions  by  confining  them  to  the  preparation  of 

90  The  rules  committee  was  criticized  severely  for  its  work  in  the  first  session 
in  which  it  enjoyed  its  present  power.    See  Annual  Record,  issued  by  City  Re- 
form Club,  New  York,  1893. 

91  Report  of  Citizens  Union— New  York  City,  1912,  p.  7. 


62  Procedure  in  State  Legislatures 

proper  rules  for  the  government  of  the  Assembly  would  be  a  signal 
reform.  It  would  require  the  legislature  to  take  stock  all  along  the 
line  and  might  prove  the  first  step  towards  efficient  legislative 
methods  in  the  earlier  days  of  the  session. 

The  existence  of  a  sifting  committee  is  evidence  of  the  breakdown 
of  the  other  legislative  facilities  for  eliminating  worthless  measures 
and  bringing  worthy  measures  to  final  passage.  If  standing  com- 
mittees would  fulfill  their  duties  and  the  house  were  to  exercise  dili- 
gence in  clearing  up  its  calendar  daily,  a  steering  committee  might 
survive  for  emergencies,  but  the  excuse  for  a  sifting  committee 
would  have  vanished.  Reliance  upon  a  sifting  committee  decreases 
the  sense  of  responsibility  of  other  committees  in  reporting  ad- 
versely. To  counteract  this  influence  the  legislature  of  South 
Dakota  abolished  sifting  committees  entirely  and  passed  resolutions 
to  clear  the  calendar  each  day.92 

92  Legislative  Reference  Bureau  of  South  Dakota,  in  reply  to  Nebraska 
Questionnaire  of  1913. 


CHAPTER  V 
PASSAGE  OF  BILLS 

Having  followed  the  course  of  legislation  from  introduction 
through  consideration  by  committee,  we  must  now  examine  the 
manner  and  means  by  which  the  legislature  expresses  its  collective 
will  upon  measures  which  survive  the  selective  powers  exercised  by 
standing  committees. 

QUORUM 

It  is  a  general  principle  of  parliamentary  law  that  a  deliberative 
body  cannot  act  without  the  presence  of  a  quorum.  The  constitu- 
tions of  forty-two  states  in  accordance  with  common  practice  pre- 
scribe that  a  majority  shall  constitute  a  quorum.  Indiana,  Texas 
and  Tennessee  have  placed  the  number  at  two-thirds.  New  York 
requires  three-fifths  present  when  passing  appropriation  bills,  and 
when  levying  a  tax  Vermont  places  the  quorum  at  two-thirds. 
These  provisions,  however,  are  nullified  by  the  general  presumption 
that  a  quorum  is  present  if  no  member  raises  the  question,  which 
often  permits  the  transaction  of  business  by  a  small  minority. 
Appropriation  bills  have  frequently  passed  the  New  York  Assembly 
with  less  than  fifteen  members  present,  although  the  journal  showed 
that  the  constitutional  majority  voted  in  the  affirmative.1  Ap- 
propriations have  passed  the  Pennsylvania  Senate  with  but 
two  members  present.  In  fact  the  practice  of  acting  without  a 
quorum  is  common  to  all  our  legislative  bodies.  The  journals  of 
course  do  not  disclose  the  absence  of  a  quorum  and  the  courts  will 
not  admit  evidence  to  impugn  them.2  It  is  but  fair  to  note,  how- 
ever, that  such  practice  is  possible  only  by  unanimous  consent,  for 

1  Report  of  a  Committee  of  the  Citizens'  Union,  1913.     New  York  Evening 
Post,  November  22, 1913,  states  that  appropriations  aggregating  $2,000,000  passed 
the  Assembly  with  six  members  in  place. 

2  See  Auditor-General  v.  Board,  89  Mich.  552.     A  resolution  unseating  one 
member  and  seating  another  was  not  invalid  because  of  no  quorum  present  since 
the  journals  did  not  disclose  that  enough  members  had  been  excused  to  kill  the 
quorum.     The  presumption  of  a  quorum  was  not  rebutted  by  affidavits  and  pro- 
tests spread  on  the  journal  at  a  later  date. 

[63] 


64  Procedure  in  State  Legislatures 

it  is  always  within  the  province  of  any  member  to  raise  the  question 
of  no  quorum.  The  mere  threat  to  raise  the  point  of  order  of  no 
quorum  is  sufficient  to  postpone  further  consideration  of  the  specific 
question  under  discussion.  The  business  of  the  house,  however,  is 
not  seriously  interrupted  for  it  at  once  proceeds  to  other  matters. 
If  opposition  to  any  measure  has  been  registered  beforehand  no 
action  is  usually  attempted  in  the  absence  of  a  quorum.  For  exam- 
ple, the  Illinois  House  customarily  devotes  Mondays,  when  a  full 
attendance  is  hard  to  get,  to  measures  on  the  calendar  to  which  no 
objection  has  been  expressed.  It  must  be  clear,  therefore,  that  in 
view  of  the  ease  with  which  a  single  member  can  obstruct  the  trans- 
action of  business  in  the  absence  of  a  quorum,  proceedings  under 
such  conditions  are  nothing  else  than  action  by  unanimous  consent. 

PRINTING  OF  BILLS 

Before  a  measure  comes  up  for  consideration  by  the  assembled 
house  it  is  usually  printed  and  placed  on  the  desks  of  the  members. 
A  few  southern  states  alone  remain  exceptions.3  Printing  before 
final  passage  is  mandatory  under  the  constitutions  of  sixteen  states; 
but  three  of  these,  Idaho,  New  York  and  Virginia,  dispense  with  it 
in  urgent  cases.4  As  a  matter  of  fact,  bills  are  printed  on  introduc- 
tion in  approximately  two-thirds  of  the  states,  and  in  the  remaining, 
with  the  exception  of  the  southern  states  noted  above,  upon  the 
favorable  report  of  a  committee.  . 

The  advantage  gained  by  printing  all  bills  on  introduction  is 
of  doubtful  value.  Maine,  Michigan  and  Minnesota  are  the  more 
important  states  whose  legislatures,  unless  by  special  order  to  the 
contrary,  print  only  bills  reported  favorably  from  committee.  The 
expense  of  printing  is  thus  reduced,  and  above  all,  the  files  of 
members  are  not  crowded  with  measures  which  will  never  come  up 
for  consideration.  The  bill  in  the  hands  of  the  members  is  cor- 
rected to  include  the  amendments  added  by  the  committee,  thus 

3  In  Alabama,  Georgia,  Mississippi  and  North  Carolina  bills  are  rarely  printed. 
Rule  XX  of  the  Pennsylvania  General  Assembly  of  1776  permitted  no  debate  on 
first  reading,  and  ordered  bills  to  lie  on  the  table  for  the  perusal  of  members,  for- 
bidding any  member  to  take  them  from  the  house.     In  such  times  the  reading  of 
the  text  of  a  bill  was  a  real  service. 

4  Index-Digest,  State  Constitutions,  pp.  842,  843.     Four  states  forbid  con- 
sideration before  printing.     This  has  been  held  only  to  require  printing  before 
the  bill  is  debated.     (Massachusetts  Insurance  Co.  v.  Trust  Co.,  20  Colo.  1.) 


Passage  of  Bills  65 

bringing  the  printed  copy  more  nearly  into  its  final  form.  Of  course 
bills  of  exceptional  interest  may  be  printed  on  introduction  by  special 
order  of  the  house.5  The  Pennsylvania  House  has  adopted  a  work- 
ing compromise  by  which  bills  on  introduction  are  printed  on  pink 
paper.  This  copy  does  not  go  on  the  desks  of  members  to  congest 
their  files,  but  may  be  secured  if  desired  at  the  office  of  the  sergeant- 
at-arms.  As  bills  are  reported  (very  few  are  reported  unfavorably, 
rather  are  they  allowed  to  die  in  committee)  they  are  printed  on 
white  paper  and  placed  in  members'  files.  In  this  connection  it 
may  be  noted  that  Connecticut  has  taken  a  step  towards  differ- 
entiation between  special  and  general  laws  by  requiring  that  the 
former  be  printed  at  the  expense  of  the  petitioner  who  must  in  addi- 
tion pay  a  fixed  fee.6  The  New  Jersey  Assembly  and  the  two  Houses 
of  Rhode  Island  also  provide  by  their  rules  that  the  cost  of  printing 
special  bills  must  be  borne  by  the  applicant.7 

READINGS 

Parliamentary  common  law  prescribes  that  each  bill  shall 
receive  three  readings  before  it  shall  be  brought  up  for  final  passage. 
These  stages  in  the  progress  of  a  measure  antedate  the  use  of  the 
printing  press,  when  copies  were  written  out  in  long  hand  and  read 
for  the  information  of  the  members.  But  the  necessity  for  reading 
at  length  no  longer  exists  and  readings  are  today  of  no  significance 
other  than  to  mark  successive  steps  in  the  advancement  of  a  meas- 
ure, each  one  being  a  device  to  secure  adequate  delay.  Provisions 
regarding  the  reading  of  bills  occur  in  thirty-six  state  constitu- 
tions, thirty-four  requiring  three  readings,  twenty-five  specifying 
that  they  be  on  three  different  days,  and  three  that  not  more  than 
two  readings  shall  be  on  the  same  day.  Thirteen  states  permit  the 
requirement  of  readings  on  separate  days  to  be  relaxed  somewhat 
by  a  vote  larger  than  a  simple  majority,  although  in  five  the  vote 
upon  the  question  of  urgency  must  be  by  ayes  and  noes,  and  in  two 
it  must  be  entered  on  the  journals.8  The  mandate  which  compels 

6  In  Maine  one-third  more  are  introduced  than  are  printed;  in  Michigan  and 
Minnesota  about  50  per  cent  of  those  introduced  are  printed. 

6  General  Laws  of  Conn.  (1902),  Iffl  32,  10.     , 

7  New  Jersey  Assembly  Rule  49;  Rhode  Island  Senate  Rule  34,  Assembly 
Rule  38. 

8  Index-Digest,  State  Constitutions,  pp.  840-842.     In  Georgia  bills  must  be 
read  on  three  separate  days  unless  in  case  of  actual  invasion  or  insurrection. 

5 


66  Procedure  in  State  Legislatures 

three  readings  on  different  days  is  salutary  as  contributing  to  dis- 
courage hasty  passage,  and,  when  absolute,  tends  to  lighten  the 
pressure  during  the  last  three  days  by  preventing  the  introduction 
of  measures  at  this  time.  Where  the  requirement  is  not  absolute 
it  may  be  of  little  effect  through  the  habit  of  granting  unanimous 
consent  to  its  suspension. 

Ordinarily  first  reading  is  merged  with  the  announcement  of 
introduction,  but  if  the  constitution  prescribes  absolutely  that 
there  must  be  three  readings  at  length,  first  reading  usually  does 
not  come  until  after  favorable  report  by  a  committee.  Thus  in 
Pennsylvania  and  Illinois  the  reading  by  title  on  introduction  does 
not  count  as  a  constitutional  reading,  and  an  additional  step  equiva- 
lent to  an  additional  reading  is  made  necessary.  West  Virginia 
escapes  this  extra  stage  through  a  provision  which  allows  the  sus- 
pension of  the  constitutional  prescription  of  three  readings  in  full 
by  an  aye  and  no  vote  entered  upon  the  journal.  Rather  than 
read  the  bill  in  full  on  first  reading  the  house  regularly  records  an 
aye  and  no  vote  on  a  motion  to  suspend.  This  is  a  useless  formality 
and  would  consume  an  inordinate  amount  of  time  were  the  roll 
actually  called. 

As  pointed  out  in  the  chapter  above,  the  custom  of  giving  two 
readings  before  reference,  still  obtaining  in  some  legislatures,  is  a 
mere  survival  and  is  indefensible  now  that  no  debate  is  held  until 
after  report  back  by  a  committee.  Today  it  is  generally  consid- 
ered bad  form  to  begin  an  attack  upon  a  bill  before  the  debate  stage 
following  committee  report.  If  two  readings  are  had  before  refer- 
ence, debate  occurs  normally  at  the  report  stage  when  the  question 
is  either  on  accepting  the  report  of  the  committee,  or,  this  being 
perfunctory,  upon  ordering  the  bill  to  a  third  reading.  Thus  is 
added  virtually  a  fourth  reading  without  increasing  in  the  least 
the  opportunity  for  deliberation.  Massachusetts  and  Maine  also 
add  a  fourth  stage  but  one  that  serves  a  somewhat  different  pur- 
pose. At  third  reading  the  question  is  put  on  passing  the  bill  to 
engrossment  after  which  it  is  sent  to  the  other  house  for  concurrence. 
There  having  " passed  to  be  engrossed"  it  is  returned  to  the  house 
of  its  origin  where  it  is  "passed  to  be  enacted"  and  sent  again  to 
the  other  house  likewise  to  be  " passed  to  be  enacted"  or  rejected. 
Final  passage  is  thereby  separated  distinctly  from  the  preceding 
stages,  a  procedure  forbidden  by  the  Constitution  of  New  York, 


Passage  of  Bills  67 

which  compels  the  final  vote  to  be  taken  immediately  following 
third  reading.  The  virtue  of  the  Massachusetts  plan  is  that  no 
temptation  exists  to  slip  in  amendments  at  the  last  moment  since 
both  houses  have  approved  the  measure  in  its  final  form  at  the 
"passed  to  be  engrossed"  stage.9  Obviously  the  Massachusetts 
practice  eliminates  the  evil  which  caused  New  York  to  merge  third 
reading  and  final  passage,  viz.,  the  postponement  of  final  passage, 
after  reading  a  bill  a  third  time,  to  a  preconcerted  hour  when  it 
could  be  forced  through  by  log  rolling.  The  sense  of  the  house  is 
expressed  when  the  bill  is  ordered  to  engrossment,-  and  final  passage 
is  merely  an  opportunity  for  the  expression  of  a  more  mature  judg- 
ment after  the  other  house  has  acted.10  In  other  states  the  vote 
on  passage  usually  follows  immediately  upon  third  reading  although 
they  are  separate  orders  of  business  and  although  occasionally  final 
action  may  be  postponed,  perhaps  to  secure  the  attendance  of  more 
friends  of  the  measure. 

The  constitutions  of  five  states  provide  for  reading  of  measures 
at  length  after  passage  and  before  signing  by  the  presiding  officer.11 
The  purpose  is  to  guard  against  alteration  at  the  last  moment  of  the 
official  copy  of  the  act,  either  through  fraud  or  error.  Although 
experience  has  shown  that  constant  vigilance  alone  assures  a  cor- 
rectly enrolled  act,  the  utter  futility  of  any  provision  regarding 
reading  in  full  is  self-evident,  since  only  a  pretense  is  made  at  ful- 
filling the  constitutional  mandate.  Even  before  the  reading  clerk  * 
is  well  started,  impatient  members  interrupt  by  cries  of  "Aye,  aye." 

The  framers  of  our  state  constitutions  seem  generally  to  have 
considered  the  reading  of  bills  at  length  to  the  assembled  house  as 
an  effective  aid  to  good  legislation.  Today  twenty-six  constitu- 

9  Amendments  are  forbidden  after  engrossment,  and  the  copy  upon  which 
the  final  vote  is  taken  becomes  the  official  copy  of  the  act.     Senate  Rule  49,  House 
Rule  53.     An  examination  of  the  journals  will  show  that  a  bill  approved  by  both 
houses  at  the  "passed  to  be  engrossed"  stage  suffers  little  danger  at  the  "passed 
to  be  enacted  "  stage. 

10  It  is  true  that  no  calendar  is  kept  in  Massachusetts  of  bills  on  final  passage 
but  the  speaker  will  give  notice  to  any  member  of  the  time  at  which  a  certain  one 
is  to  come  up.     Frothingham,  "A  Brief  History  of  the  Constitution  and  Govern- 
ment of  Massachusetts,"  p.  117. 

11  Kentucky,  New  Mexico,  Alabama,  Oklahoma   and   Louisiana.     In   Ala- 
bama and  Oklahoma  two-thirds  may  dispense  with  it,  and  it  is  not  required  in 
Louisiana  unless  five  request  it.     Index-Digest,  State  Constitutions,  p.  842. 


68  Procedure  in  State  Legislatures 

tions  specifically  require  that  bills  be  read  in  full  at  least  once  before 
final  passage,  although  two,  Ohio  and  Virginia,  permit  the  man- 
date to  be  suspended  in  cases  of  urgency.  Fifteen  of  the  above 
require  three  readings  at  length.  Of  the  latter,  eleven  constitutions 
permit  one  or  two  full  readings  to  be  dispensed  with,  but  in  four 
the  provision  is  inflexible.  Such  prescriptions  betray  in  the  minds 
of  their  authors  a  wholly  unscientific  knowledge  of  human  psychol- 
ogy. It  is  difficult  to  believe  that  even  a  most  sympathetic  imagi- 
nation could  have  visualized  a  legislature  sitting  through  a  single 
afternoon,  earnestly  attentive  while  bill  after  bill  was  read  in  their 
hearing.  The  time  which  would  thus  be  consumed  alone  renders 
compliance  with  the  constitution  impossible.  Many  bills  are  long 
and  technical  and  their  reading  aloud  could  serve  no  useful  purpose. 
A  recent  chartering  bill  in  West  Virginia  covered  247  pages,  and  an 
honest  reading  would  have  been  a  sheer  waste  of  precious  time. 
Usually  the  clerk  reads  the  title  and  perhaps  a  few  words  of  the  text, 
i  consuming  but  a  fraction  of  a  moment  although  the  journal  will 
show  a  reading  in  full.12 

The  house,  however,  will  usually  recognize  a  demand  that 
the  bill  be  read  in  full  as  the  constitution  requires,  a  concession 
which  lends  itself  easily  to  obstructive  tactics,  since  it  is  easy  for  a 
minority  wishing  to  delay  action  to  demand  their  constitutional 
right.  Although  no  constitutional  mandate  to  read  bills  in  full 
exists  in  New  York,  the  Senate  of  that  state  was  accustomed  to 
grant  such  demand  until  the  session  of  1915  developed  an  extraor- 
dinarily obstinate  minority.  As  a  consequence  the  point  of  order 
was  sustained  that  the  right  to  call  for  reading  at  length  could  be 
exercised  only  in  the  committee  of  the  whole  upon  the  second  read- 
ing of  the  bill.13  The  way  henceforth  is  opened  to  defeat  such  dila- 
tory methods  at  the  beginning,  although  the  minority  loudly  pro- 
tested that  their  constitutional  guarantee  was  being  violated.14 

12  See  article  "Improvement  of  Legislative  Methods  and  Procedure"  by  Ches- 
ter Lloyd  Jones  in  Proceedings  of  the  American  Political  Science  Association,  1913- 
1914,  p.  191,  for  the  experience  of  several  states  with  the  constitutional  provision 
under  consideration.     More  complete  returns  collected  by  the  Nebraska  Legis- 
lative Reference  Bureau  bear  out  the  conclusion  that  the  requirement  is  not  only 
futile  but  harmful. 

13  Senate  Journal,  1915,  p.  936;  and  New  York  Times  April  2,  1915. 

14  Mr.  S.  B.  Scott  in  his  forthcoming  book  on  Pennsylvania  state  government 
gives  a  highly  entertaining  instance  in  which  the  power  to  demand  reading  in 


Passage  of  Bills  69 

DEBATE 

It  is  common  knowledge  that  our  state  legislatures  are  no 
longer  deliberative  bodies  and  that  there  is  little  real  debate  on  the 
floor.  Debate,  such  as  it  is,  generally  occurs  when  the  bill  comes 
up  the  first  time  after  favorable  report  by  committee.  This  is  on 
second  reading,  unless  it  is  the  custom  to  give  two  readings  before 
reference,  in  which  case  opportunity  for  debate  upon  the  merits  of 
the  measure  arises  on  the  question  of  adopting  the  report  or  order- 
ing the  bill  to  third  reading.  The  practice  of  some  legislatures 
provides  for  no  real  debate  until  third  reading,  and  consequently 
all  discussion  must  immediately  precede  final  action.15  The  custom 
of  a  majority  of  the  legislatures,  however,  is  to  pursue  a  less  sum- 
mary course  by  separating  debate  and  final  action.  The  debate 
stage  being  the  normal  time  for  introducing  amendments,  members 
have  an  opportunity  to  express  a  more  mature  judgment  when  the 
revised  measure  comes  up  later  for  final  passage.  Second  reading 
therefore  is  usually  the  crucial  period  in  a  bill's  history  and  unless 
it  is  of  special  political  significance,  third  reading,  which  gives  an 
excellent  opportunity  to  debate  the  merits  of  the  amended  measure, 
is  as  much  a  matter  of  routine  as  the  first.  In  keeping  with  Massa- 
chusetts' unique  procedure,  only  a  few  bills  are  discussed  at  second 
reading,  debate  being  held  at  third  reading  upon  the  question  of 
engrossment.  As  noted  above,  final  passage  is  postponed  until  the 
other  house  has  concurred  in  the  order  to  engross. 

Most  legislatures  permit  bills  to  be  taken  up  by  sections  at  the 
debate  stage.  As  each  section  is  considered  amendments  may  be 
proposed,  and  it  is  well  that  here  the  house  should  move  deliber- 
ately. If  reading  by  sections  is  postponed  until  third  reading, 

full  was  invoked  as  a  dilatory  measure.  Third  reading  of  a  bill  covering  fifty- 
two  closely  printed  pages  of  three  columns  each  in  the  record  was  demanded. 
The  clerks  became  exhausted  and  members  were  summoned  to  take  their  places 
while  kindly  persons  insisted  that  the  reading  be  louder  and  more  distinct,  in 
order  that  they  might  follow  it  on  their  files.  Finally  a  reading  squad  was  organ- 
ized to  read  several  portions  of  the  bill  simultaneously  and  the  majority  felt  that 
they  had  fulfilled  the  letter  of  the  law.  In  all  about  four  hours  were  consumed. 

15Alabama,  Connecticut,  Illinois,  Iowa,  Louisiana,  Kansas,  Ohio  and  the 
Dakotas  report  that  debate  is  commonly  delayed  until  third  reading.  In  Kansas, 
however,  many  measures  are  discussed  in  committee  of  the  whole,  which  is  the 
second  reading  stage.  Measures  which  escape  the  committee  of  the  whole  are 
not  debated  until  third  reading. 


v 


70  Procedure  in  State  Legislatures 

errors  which  would  otherwise  have  been  disclosed  at  an  earlier  time 
are  not  discerned  until  it  is  difficult  to  rectify  them.  Yet  strangely 
enough,  the  ten  states,  which  by  constitutional  mandate  prescribe 
but  one  reading  in  full,  specify  that  it  shall  be  the  last.16 

THE  COMMITTEE  OF  THE  WHOLE 

At  one  time  the  committee  of  the  whole,  which  furnished  such 
excellent  facilities  for  discussion,  was  a  part  of  the  normal  proce- 
dure, but  the  general  spirit  of  speeding  up  today  pervading  legisla- 
tive halls  has  worked  for  its  downfall.  It  is  not  recognized  by  the 
rules  of  the  New  York  Assembly,  while  in  the  West  Virginia  Senate 
there  have  been  but  two  committees  of  the  whole  in  the  last  twenty 
years,  and  in  Massachusetts  but  one  in  the  last  twenty-five  years.17 
The  rule  of  the  Pennsylvania  House  requiring  the  committee  of  the 
whole  on  all  measures  is  invariably  suspended  by  unanimous  con- 
sent. With  monotonous  regularity  the  journal  records,  "the  rule 
requiring  bills  to  be  considered  in  the  committee  of  the  whole  being 
in  this  case  dispensed  with."  Elsewhere,  however,  the  rules  generally 
provide  merely  that  the  committee,  of  the  whole  may  be  ordered 
upon  a  majority  vote,  a  privilege,  it  may  be  repeated,  availed  of 
but  little.  Where  its  use  still  survives  the  procedure  is  for  all  bills 
favorably  reported  by  committees  to  go  on  the  calendar  of  general 
orders  and  for  the  house  to  go  into  the  committee  of  the  whole  auto- 
matically when  this  order  is  reached  in  the  daily  program.  Kansas, 
Michigan,  Montana,  Nebraska  and  Oklahoma  may  be  mentioned 
as  making  general  use  of  this  form  of  organization. 

The  advantages  of  the  committee  of  the  whole  are  such  as  to 
have  started  a  movement  for  a  general  return  to  its  employment. 
In  it  the  restrictions  of  formal  debate  are  thrown  aside,  and  although 
the  personnel  of  the  members  does  not  differ  from  that  of  the  house, 
they  come  to  it  in  a  different  frame  of  mind.  Its  purpose  is  frank 
discussion  and  deliberation.  The  committee  of  the  whole  may 
hold  a  public  hearing;  as  for  example,  at  the  hearings  in  1915  by 
the  Illinois  Senate  upon  the  bill  to  abolish  capital  punishment 

16  Index-Digest,  State  Constitutions,  p.  842. 

17  Statements  in  reply  to  the  Nebraska  Questionnaire.     A  motion  to  go  into 
committee  of  the  whole  in  order  to  hear  testimony  concerning  a  proposed  railroad 
measure  was  defeated  by  an  overwhelming  vote.     Massachusetts  House  Journal 
1915,  p.  1212. 


Passage  of  Bills  71 

the  Governor  and  others  appeared,  addressed  the  Senate,  and  were 
in  turn  questioned  by  members.18  In  this  connection  it  may  be 
noted  that  Wisconsin,  whose  rules  permit  the  committee  of  the 
whole  upon  a  demand  of  one-sixth,  is  taking  greater  and  greater 
advantage  of  this  more  or  less  informal  organization  by  summoning 
administrative  officials  before  it.  Such  procedure  is  also  valuable 
in  the  consideration  of  money  bills,  which  should  be  taken  up  item 
by  item.  The  Illinois  House  in  1915  adopted  a  practice  frequently 
followed  in  Kansas  and  Oklahoma,  by  which  bills  at  introduction 
may  be  referred  by  the  speaker  directly  to  the  committee  of  the 
whole ;  the  idea  being  that  upon  some  bills  it  would  be  well  if  mem- 
bers were  uninfluenced  by  the  action  of  a  committee.  The  rule  in 
Illinois  has  been  of  no  effect  because  the  privilege  of  reserving  bills 
for  consideration  by  the  whole  house  has  been  rarely  exercised. 

The  possibility  of  abuse  of  the  committee  of  the  whole,  which 
has  done  much  to  bring  it  into  disfavor,  lies  in  the  absence  of  any 
record  of  proceedings  therein  and  in  the  disposition  of  the  house  to 
sanction,  without  a  roll  call,  the  adoption  of  amendments  reported 
therefrom.  The  general  parliamentary  principle  that  the  ayes 
and  noes  cannot  be  demanded  in  this  committee  is  reenforced  by 
specific  rule  in  many  states.  In  a  few  cases,  however,  some  record 
is  preserved.  In  Maine,  Illinois  and  Pennsylvania  a  report  of 
debates  appears  in  the  stenographic  record  of  all  proceedings,  al- 
though there  is  no  way  of  getting  the  members'  votes  on  record, 
and  in  none  of  these  is  a  committee  of  the  whole  more  than  a  very 
occasional  occurrence.  A  small  fraction  of  the  committee  of  the 
whole  may  demand  a  roll  call  in  Kansas,  Kentucky  and  Nebraska 
but  common  practice  neglects  the  call  for  the  ayes  and  noes.19 
Louisiana  seems  to  have  been  the  first  to  require  a  complete  record 
of  action  of  this  committee  to  be  entered  on  the  journal  as  are  other 
proceedings  of  the  house,20  and  the  Arizona  Senate  alone  has  fol- 
lowed her  example.21  Where  the  constitution  requires  three  read- 

18  Illinois  Senate  Debates,  1915,  pp.  442  et  seq. 

19  In  Kansas  and  Kentucky  twenty-five  may  demand  a  roll  call,  and  in 
Nebraska  ten. 

20  House  Rule  67.    An  examination  of  the  journals  of  Louisiana  reveals  that 
this  is  usually  observed. 

21  Statement  of  the  late  Senator  Cunniff  of  Arizona. 


72  Procedure  in  State  Legislatures 

ings  of  bills,  consideration  in  committee  of  the  whole  is  counted  as 
the  second  reading,  although  this  was  not  true  formerly.22 

CONTROL  OVER  DEBATE — OBSTRUCTION 

Control  over  debate  is  always  possible  for  the  lower  house 
through  the  simple  expedient  of  the  previous  question.  The  usual 
practice  of  the  upper  houses  likewise  permits  debate  to  be  closed 
by  this  means,  although  certain  restrictions  may  be  enforced,  such 
as  the  condition  that  more  than  one  member  must  second  the  mo- 
tion.23 In  Connecticut,  Massachusetts,  New  York  and  Vermont 
the  previous  question  in  the  Senate  is  not  in  order.  This  does  not 
mean,  however,  that  cloture  may  not  prevail.  On  the  contrary,  in 
the  Massachusetts  Senate  debate  may  be  closed  under  the  rules 
one  hour  after  the  adoption  of  a  motion  to  that  effect,  and  on  this 
motion  not  more  than  ten  minutes  can  be  consumed  in  debate.24 
In  the  New  York  Senate  the  president  must  recognize  a  member 
who  wishes  to  move  to  close  debate  after  the  measure  has  been 
before  the  house  for  six  hours.25  This  rule  was  adopted  after  experi- 
ence had  persuaded  the  members  to  surrender  their  senatorial 
privilege  of  unlimited  debate,  but  immediately  was  rendered  inef- 
fective through  a  ruling  by  an  unsympathetic  president  that  the 
time  for  debate  might  be  extended  by  offering  a  substitute  measure, 
which  constituted  a  new  and  independent  proposition.26  To  escape 
this  impasse  the  rules  committee  began  to  report  special  limita- 
tions upon  debate,  and  cloture  in  the  Senate  became  an  accepted 
fact.27  In  1915,  following  a  series  of  obstructive  tactics  by  the 
minority,  a  resolution  was  passed  to  extend  throughout  the  session 
which,  although  not  authorizing  the  previous  question,  accomplishes 
the  same  result.  A  motion  to  close  debate  could  be  moved  at  any 

22  Sustained  in  In  re  Reading  of  Bill,  1  Colo.  641. 

23  In  the  senates  of  Virginia  and  Wyoming  three  are  necessary  to  demand  the 
previous  question.     In  Pennsylvania,  four,  and  in  Delaware,  five. 

24  Senate  Rule  47.    Adopted  in  1882. 
"'Adopted  in  1894.     S.  J.  pp.  125,  196. 

26  S.  J.  1894,  pp.  191,  196  et  seq.     The  chair  was  able  to  defeat  the  will  of 
the  majority  by  refusing  to  consider  an  appeal  from  the  decision  on  the  ground 
that  no  question  of  order  was  involved. 

27  S.  J.  1897,  p.  1326.     This  is  believed  to  be  the  first  instance.     Debate  was 
limited  to  two  hours. 


Passage  of  Bills  73 

time,  and  when  carried,  shut  off  debate  immediately;    members 
were  allowed  but  two  minutes  on  roll  call  to  explain  their  votes.28 

The  Georgia  Senate  while  permitting  the  previous  question 
has  placed  unusual  restrictions  in  its  way  by  requiring  a  majority 
to  sustain  the  call  for  putting  the  motion,  a  motion  ,to  adjourn  or  to 
lay  on  the  table  being  in  order  before  the  question  on  closing  debate 
is  taken,  and  by  further  prescribing  that  no  senator  before  yielding 
the  floor  shall  submit  any  motion  the  effect  of  which  shall  be  to 
prevent  further  debate.29  Thus  the  custom,  widely  practiced  in 
the  Illinois  Senate,  of  making  a  motion  and  in  the  same  breath 
moving  the  previous  question  upon  it  is  impossible.  In  the  Illinois 
Senate  it  is  not  unusual  for  one  to  move  that  a  bill  be  taken  up  on 
third  reading  and  final  passage  out  of  its  order  and  immediately  to 
move  the  previous  question.  This  objectionable  procedure  pre- 
vents any  debate  whatever  upon  the  measure  since  the  earlier  stages 
were  passed  perfunctorily,  all  discussion  having  been  postponed 
until  third  reading.  It  will  be  seen  from  the  foregoing  that  the 
dignity  of  the  upper  houses  of  our  legislatures  no  longer  demands 
freedom  of  unlimited  discussion  and  that  the  means  of  checking 
long-winded  tactics  are  universally  at  hand.30 

28  S.  J.  1915,  pp.  933,  934.     Not  even  questions  of  personal  privilege  were  in 
order  after  the  motion  to  close  was  carried.     P.  1160. 

29  Senate  Rules  59,  122. 

30  The  development  of  the  previous  question  as  a  means  of  suppressing  debate 
and  bringing  the  house  to  an  immediate  vote  upon  the  matter  at  hand  was  thor- 
oughly reviewed  in  a  discussion  in  the  Fourteenth  Congress  (January  19,  1816) 
upon  a  motion  to  expunge  the  rule  which  permitted  it  to  be  invoked.     William 
Gaston  pointed  out  that  it  was  originally  used  in  Parliament  to  postpone  the 
putting  of  the  question  when  a  decision  at  the  time  would  be  embarassing  or  inju- 
rious, owing  to  the  delicate  nature  of  the  subject.     If  the  previous  question  was 
carried,  discussion  of  the  main  question  was  suspended  and  debate  turned  to  the 
propriety  of  taking  a  vote  on  the  main  proposition.     "Its  purpose  was  not  to 
suppress  unpleasant  discussion  but  unpleasant  decision."     The  question  then  put 
was,  " Shall  the  main  question  be  now  put?"    (5  Hinds  5443,  and  for  Parliament 
May,  p.  269.)     Today  it  is  stated  negatively  in  Parliament,  viz.,  "That  the  ques- 
tion be  not  now  put,"  because  of  the  similarity  of  the  old  form  to  the  cloture  mo- 
tion now  in  use.     (May,  p.  269.)     Unlike  the  experience  of  American  legislatures, 
development  of  cloture  in  Parliament  did  not  proceed  from  an  abortive  use  of  the 
previous  question,  where  such  motion  still  retains  its  early  purpose. 

The  previous  question  was  first  invoked  to  shut  off  debate  in  Congress  on 
December  15,  1807,  on  which  occasion,  however,  the  speaker's  decision,  that  the 
question  decided  in  the  affirmative  precluded  further  discussion,  was  overruled 


74  Procedure  in  State  Legislatures 

Obstruction  in  the  state  legislatures  is  further  made  difficult 
by  the  general  adoption  of  time  limits  upon  speeches,  which  are 
either  incorporated  in  the  rules,  as  in  the  Illinois  Senate  and  House 
and  the  New  York  Assembly,  or  are  more  commonly  enforced  by  a 
resolution  passed  about  the  middle  of  the  session.  In  this  manner 
Massachusetts  has  placed  the  limit  at  ten  minutes,  Kansas  at  fifteen, 
and  the  New  York  Senate  at  five.31  Obstruction  has  but  rarely 
presented  a  troublesome  problem  in  the  state  legislatures  since 
both  majority  and  minority  are  anxious  rather  to  speed  up  legisla- 
tion than  to  impede  it.  Vigorous  use  of  the  previous  question  plus 
the  operation  at  times  of  a  steering  committee  with  power  to  restrict 
incidental  motions  has  been  generally  effective  against  efforts  of  the 
minority  to  impose  its  will  upon  the  majority.  Following  congres- 
sional practice,  speakers  refuse  to  consider  dilatory  motions,  even 
going  so  far  as  to  deprive  a  member  of  the  floor  if  he  is  not  using 
his  time  in  good  faith.32 

by  a  vote  of  103  to  14,  which  judgment  was  affirmed  later  on  December  1,  1809, 
by  a  vote  of  101  to  18.  But  on  February  27,  1811,  the  House  reversed  itself  dur- 
ing the  debate  on  the  Non-Intercourse  act  by  ruling  that  the  previous  question 
did  shut  off  debate.  This  action  was  taken  during  the  last  days  of  the  session 
when  time  was  precious.  It  is  clear  that  the  previous  question  was  not  called  in 
through  misunderstanding  as  to  its  accepted  use,  the  speaker's  decision  in  accord- 
ance with  the  precedents  established  on  the  two  earlier  occasions  being  overruled, 
but  because  it  seemed  to  furnish  a  convenient  instrument  of  cloture  when  one 
was  sadly  needed.  In  England,  however,  the  question  of  cloture  was  fought  out 
on  its  own  basis,  a  distinct  procedure  being  constructed  for  the  purpose.  (See 
Redlich,  vol.  1,  pp.  137  et  seq.  and  vol.  II,  pp.  227  et  seq.  For  a  complete  history 
of  the  previous  question  in  Congress  see  5  Hinds,  ch.  CXX.) 

Cloture  was  not  admitted  in  Congress  without  a  severe  struggle,  and  al- 
though no  precedent  could  be  found  in  Parliament,  one  at  least  existed  in  the 
rule  of  Pennsylvania  Colonial  Assembly  (Rule  XVII  in  1776),  '"If  at  any  time  a 
debate  prove  tedious  and  four  members  demand  that  the  matter  be  put  to  vote, 
speaker  shall  not  refuse  it."  McConachie,  "Congressional  Committees,"  pp. 
23,  24,  states  that  this  rule  first  occurs  in  1703  and  that  a  rule  authorizing  the 
speaker  to  stop  superfluous  and  tedious  debates  appeared  as  early  as  1682. 

31  In  Illinois  Senate  and  New  York  Assembly  under  the  rules  a  member  may 
speak  fifteen  minutes;  in  the  Illinois  House  thirty  minutes,  and  in  the  Washing- 
ton House  only  ten  minutes.     For  resolutions  limiting  debate  see  Massachusetts 
House  Journal,  1916,  p.  198;   Kansas  House  Journal,  1915,  p.  28;   New  York 
Senate  Journal,  1915,  p.  1589. 

32  Michigan  House  Journal,  1901,  p.  1234.     The  old  procedure  of  demanding 
roll  calls  on  amendments  to  the  journal,  sometimes  employed  before  Speaker 
Reed's  ruling  on  dilatory  motions,  would  be  quickly  suppressed  today. 


Passage  of  Bills  75 

A  unique  method  of  obstruction  was  employed  at  the  1915 
session  of  the  Illinois  Senate,  when  a  strong  minority  was  seeking 
to  prevent  the  naming  of  a  rules  committee  until  the  results  of  cer- 
tain contested  elections  could  be  known.     The  scheme,  which  failed 
as  a  matter  of  course,  was  to  offer  amendments  to  the  resolution 
naming  the  committee.     Notice  would  then  be  given  that  the  next 
day  reconsideration  would  be  moved  of  the  vote  by  which  the  amend- 
ment was  lost,  which,  the  minority  believed,  delayed  action  upon 
the  main  proposition  until  the  amendment  was  disposed  of.     The 
opposing  view  of  the  majority  was  that  all  ancillary  motions  are 
carried  by  the  main  motion  and  that  a  substitute  cannot  be  used 
as  a  method  of  defeating  the  main  question.     Accordingly,  the 
majority  finally  went  ahead  and  passed  the  resolution,  later  over- 
ruling the  objection  of  the  chair  that  the  original  motion  was  never 
passed   while   amendments   were   pending.     The   presiding  officer 
was  of  the  minority  party  and,  as  every  minute  was  valuable  in  the 
race  to  control  the  make-up  of  the  rules  committee,  the  majority  at 
the  time  had  no  hesitancy  in  overruling  his  decision.     It  was,  how- 
ever, a  doubtful  parliamentary  proceeding  as  the  effect  of  a  motion 
to  reconsider  is  to  suspend  the  original  proposition.33     Alabama 
alone  has  guarded  by  rule  against  such  a  situation  by  providing 
that  a  motion  to  reconsider  a  subsidiary  question  cannot  remove 
the  main  question  from  consideration  but  shall  be  disposed  of  at 
the  time  made.34    It  may  be  pointed  out  that  such  a  situation  could 
not  arise  in  those  states  which  like  Pennsylvania  do  not  admit  a 
notice  of  reconsideration.     It  is  unreasonable,  however,  that  the 
will  of  the  majority  should  be  defeated  by  such  paltry  means  and 
the  speaker  would  have  been  justified  in  ruling  such  conduct  as 
dilatory.     It  is  sufficient  that  an  opportunity  be  given  later  to 
reconsider  the.  final  vote  at  which  time  amendments  would  be  open 
for  reconsideration  also. 

SUSPENSION  OF  THE  RULES 

But  as  has  been  already  indicated  the  dangers  in  legislative 
procedure  lie  rather  in  the  direction  of  too  little  discussion"  than  in 
the  direction  of  too  prolonged  debate.  No  rule  is  invoked  so  often 
as  the  one  which  permits  dispensing  with  the  rules  so  that  bills  may 

33  5  Hinds  5704. 

34  House  Rule  18. 


76  Procedure  in  State  Legislatures 

be  hurried  through  in  several  minutes.  Only  indeed  where  the 
constitutional  requirement  of  readings  on  several  days  is  absolute 
can  undue  haste  be  avoided;  a  two-thirds  or  three-fourths  vote  to 
suspend  the  provision  being  as  easy  to  secure  as  a  simple  majority. 
Rarely  is  a  division  necessary  to  secure  the  requisite  number,  which 
is  usually  obtained  by  unanimous  consent.35  Naturally  the  most 
frequent  suspensions  of  the  rules  to  expedite  legislation  involve 
local  and  obscure  measures,  for  if  any  political  importance  attaches 
to  the  bill  the  minority  will  see  that  it  takes  the  normal  course.  A 
member  announces:  "Gentlemen,  this  is  merely  a  local  measure, 
personal  to  me  and  my  constituents  and  I  ask  to  have  it  put  on 
immediate  passage."  The  house  is  not  interested  and  is  quite  will- 
ing to  act  blindly  upon  the  recommendation  of  the  local  member. 

The  usual  method  of  facilitating  passage  is  simply  to  omit 
certain  of  the  steps  which  a  bill  would  normally  take.  It  is  not 
uncommon  to  advance  bills,  as  they  are  reported  from  committee, 
to  third  reading  subject  to  amendment  and  debate.  In  this  man- 
ner they  escape  the  customary  debate  stage,  which  occurs  either  at 
second  reading  or  on  the  motion  to  accept  the  committee's  report, 
and  pass  finally  without  discussion.  Another  method  of  facilitating 
passage  is  to  adopt  a  motion  to  consider  the  second  reading  as  the 
third  and  pass  the  bill  at  once,36  or  to  order  that  a  measure,  reported 
from  committee,  be  engrossed  at  the  clerk's  desk  and  put  on  final 
passage.37 

Unfortunately  for  the  public,  the  confusion  of  the  closing  hours 
is  greatly  intensified  by  indiscriminate  suspension  of  the  rules. 
Indeed  where  constitutional  checks  do  not  prevent,  bills  may  be 
advanced  from  introduction  to  final  passage  in  a  few  seconds.  Obvi- 
ously such  proceedings  nullify  all  checks  and  safeguards.38  In  Del- 
aware, the  Senate  will  admit  a  bill  on  introduction,  go  into  com- 
mittee of  the  whole,  receive  and  adopt  the  report  therefrom,  read 
it  a  third  time,  and  pass  it  as  rapidly  as  the  successive  motions  can 

35  For  the  constitutional  provisions  which  permit  suspension  of  readings  on 
several  days  see,  Index-Digest  of  State  Constitutions,  pp.  840-842. 

36  The  practice  in  Washington. 

37  Ohio  practice.     Minnesota  also  frequently  moves  a  bill  from    committee 
report  to  final  passage  in  one  motion. 

38  Kansas,  North  Dakota  and  West  Virginia  are  the  worst  offenders.     In 
West  Virginia  the  ayes  and  noes  on  the  motions  to  suspend  the  rules  appear  on 
the  journals. 


Passage  of  Bills  77 

be  put.  Naturally  separation  of  the  several  stages  by  several  days 
does  not  guarantee  deliberation  or  thought,  but  it  does  afford  an 
opportunity  for  them  and  a  chance  for  anyone  who  may  be  inter- 
ested to  be  heard,  as  well  as  for  verification  of  the  official,  enrolled 
copy. 

Investigation  of  the  journals  reveals  that  in  most  legislatures 
the  majority  of  business  of  the  closing  days  is  done  under  suspension 
of  the  rules.  Only  bills  so  favored  can  secure  attention.  In  the 
absence  of  a  steering  committee  suspension  of  the  rules  to  consider 
a  bill  out  of  its  regular  order  is  the  house's  way  of  sifting  legislation. 
Bills  move  from  second  to  third  reading  and  final  passage  without 
regard  to  the  regular  order  and  the  calendar  is  thereby  rendered 
futile.39  Michigan  and  New  York  have  sought  to  meet  the  evils 
of  undue  haste  by  the  constitutional  prescription  that  all  bills  be 
printed  and  in  the  possession  of  members,  in  Michigan  five  days 
before  final  action,40  and  in  New  York  three  days  in  final  form,  thus 
rendering  snap  amendments  impossible.41  The  rules  of  the  New 
York  Assembly  further  guard  against  surprise  by  the  provision  that 
a  bill  shall  be  on  third  reading  calendar  two  days  before  being  taken 
up  unless  it  has  been  made  a  special  order,  in  which  case  third  read- 
ing is  permitted  to  follow  immediately  upon  second.  Notice  of  the 
special  order,  however,  must  appear  on  the  calendar  two  days  before 
consideration.42  Suspension  of  this  procedure  is  guarded  against 
by  the  general  requirement  of  one  day's  notice  to  suspend  any  rule.43 
Yet  it  is  quite  common  for  a  member  to  secure  unanimous  consent 
to  put  a  bill  on  final  passage  immediately  after  the  report  of  a  com- 
mittee. It  must  be  admitted,  however,  that  the  situation  the  last 
few  days  is  relieved  by  the  fact  that  the  daily  program  is  completely 
in  the  hands  of  the  rules  committee. 

Between  a  sifting  committee  easily  amenable  to  the  will  of 
the  house  and  the  transaction  of  business  under  a  general  suspen- 
sion of  the  regular  order  there  is  a  real  choice.  The  advantage  of  a 
prearranged  calendar  which  gives  certainty  as  to  what  business 

89  Minnesota  begins  this  early  in  the  session. 
«°Art.  5,  Sec.  22. 

41  Art.  3,  Sec.  15.     Of  course  if  the  requirement  of  three  readings  on  separate 
days  is  made  absolute  by  the  constitution,  bills  cannot  be  advanced  in  whirlwind 
fashion  from  introduction. 

42  Assembly  Rule  12. 
"Assembly  Rule  55. 


78  Procedure  in  State  Legislatures 

shall  come  up  is  wholly  with  the  former.  The  Senate  of  New  York, 
which  uses  a  steering  committee  but  little,  preserves  a  semblance  of 
regular  order  at  the  end  by  a  rule  that  all  bills  must  be  referred  to 
the  committee  of  the  whole  before  third  reading.44  As  the  session 
draws  to  a  close,  "General  Orders,"  the  calendar  of  bills  before  the 
committee  of  the  whole,  is  never  reached  in  the  day's  business. 
Consequently  a  measure  must  depend  for  advancement  upon  secur- 
V'  ing  unanimous  consent  to  dispense  with  the  committee  of  the  whole 
and  to  order  it  directly  to  third  reading.  The  task  of  objecting  to 
such  advancement  for  any  measure  is  delegated  to  the  majority 
leader  by  his  party  colleagues.  The  minority  group  for  practical 
reasons  find  it  to  their  advantage  usually  to  remain  in  line  and 
consequently  a  single  man,  the  majority  leader,  determines  the  fate 
of  the  bulk  of  the  measures  which  come  up  during  the  last  days  of 
the  legislature.  The  grip  of  the  organization  is  further  strengthened 
by  the  ruling  that  motions  to  discharge  the  committee  of  the  whole 
must  be  made  under  the  order  of  "Motions  and  Resolutions,"  an 
order  seldom  reached  on  the  last  days.  It  is  therefore  impossible 
for  legislation  unfavored  by  the  organization  to  get  a  hearing.  The 
minority  must  behave,  since  it  has  legislation  on  which  it  will  ask 
unanimous  consent,  and  it  cannot  risk  discipline  by  the  majority. 

A  commendable  reform  would  be  to  allow  motions  to  discharge 
the  committee  of  the  whole  under  "Reports  of  Standing  Com- 
mittees," which  is  reached  early  in  the  day's  session.  "General 
Orders"  would  then  no  longer  serve  as  a  graveyard  for  bills  but 
rather  as  a  depository  for  them  until  withdrawn  by  the  senate  using 
its  selective  power  through  its  ability  to  discharge  the  committee  of 
the  whole  from  those  matters  which  it  wished  to  consider  at  the 
late  date.  A  great  many  measures  reported  from  standing  com- 
mittees on  the  last  few  days  escape  consignment  to  "General  Or- 
ders" by  gaining. unanimous  consent  to  immediate  advancement  to 
third  reading,  there  to  await  their  turn  on  the  calendar.  If  the 
sponsors  are  unwilling  to  have  their  measure  lie  on  this  calendar 
until  it  can  be  taken  up  in  its  regular  order,  they  move  to  suspend 
the  obstructive  rules  in  order  that  it  may  be  rushed  through  to 
final  passage.  Upon  this  motion,  however,  one  day's  notice  is 
required,  and  when  the  motion  comes  up  at  a  later  day  members 
have  an  opportunity  to  defeat  the  rapid  progress  of  the  measure. 

«*  Senate  Rule  18, 


Passagelof  Bills  79 

The  point  to  be  noticed  is  that  by  the  practice  of  the  New  York 
Senate,  few  bills  are  rushed  from  committee  through  final  passage 
without  due  notice  to  members,  and  to  this  extent  it  is  an  improve- 
ment over  the  haphazard  methods  practiced  elsewhere.  Occa- 
sional measures  are  rushed -through  by  unanimous  consent  under 
a  general  suspension  of  all  rules,  but  such  cases  are  the  exception 
rather  than  the  rule.  Although  very  autocratic,  a  more  orderly 
system  of  selection  prevails  than  in  those  legislatures  which  have 
developed  no  other  sifting  agency  than  business  by  unanimous 
consent. 

AMENDMENTS 

Notwithstanding  how  accurately  and  skilfully  a  bill  may  be 
drafted,  ambiguities  and  inconsistencies  may  creep  in  due  to  the 
insertion  of  improper  amendments.  Accordingly,  examination  of 
all  amended  measures  by  an  expert  before  they  are  put  up  for  final 
vote  is  much  to  be  desired,  yet  only  a  few  states  provide  by  rules 
for  such  revising  process.  Colorado,  Maine  and  Massachusetts 
have  committees  which  revise  bills  before  third  reading  and  are 
authorized  to  correct  inaccuracies,  repetitions  and  inconsistencies. 
The  actual  work  of  course  is  done  by  clerks  and  everything  depends 
upon  the  skill  and  experience  of  the  clerical  force.  Wisconsin  em- 
ploys a  revision  clerk  in  the  Senate  and  a  revision  committee  in  the 
House  to  examine  amendments  while  the  bill  is  yet  in  the  hands  of 
the  standing  committee,  and  an  additional  committee  on  bills  on 
third  reading  is  maintained  in  both  houses.  The  New  Jersey  House 
leaves  it  to  the  speaker  to  decide  whether  amendments  shall  be 
submitted  to  a  committee  on  bill  revision  to  see  that  they  agree 
with  the  context.  No  bill  can  be  reported  from  a  committee  in 
Connecticut  until  after  it  has  received  the  approval  as  to  form  of 
the  clerk  of  bills,  who  is  always  an  official  of  several  years'  experi- 
ence in  legislative  matters,  having  reached  the  position  through 
systematic  promotion.  The  committees  on  revision  in  New  York 
and  Massachusetts,  authorized  to  examine  the  grammatical  lan- 
guage, correct  typographical  errors  and  make  the  bill  accomplish 
the  purpose  intended,  employ  experts  for  the  work.  The  work  of 
the  New  York  committee  is  somewhat  weakened  through  their 
inability  to  report  amendments;  they  report  only  recommenda- 
tions which  do  not  force  consideration  as  amendments  would.  With 
the  exception  of  Massachusetts  none  of  the  above  committees  can 


80  Procedure  in  State  Legislatures 

effect  changes  in  the  legal  sense.  The  revision  committee  in  Wis- 
consin, however,  may  call  attention  to  any  change  deemed  advisa- 
ble as  long  as  the  proposed  alterations  do  not  affect  the  scope  of  the 
bill.  The  committee  in  Massachusetts  may  report  as  amendments 
changes  in  the  legal  effect.  It  will  be  seen  that  at  best  the  legisla- 
tures have  taken  only  half-way  measures  to  assure  that  bills,  per- 
haps admirably  drawn  for  introduction,  shall  not  be  rendered  ambig- 
uous, inconsistent  and  impossible  through  amendments  which  may 
be  adopted. 

Yet  regardless  of  how  thoroughly  measures  are  examined  and 
/  corrected  before  third  reading,  if  the  way  is  clear  to  introduce  amend- 
ments on  final  passage  gross  evils  may  result.  It  works  out  about 
as  follows:  "The  clerk  announces  the  reading  of  a  bill;  he  begins 
its  reading,  when  a  member  offers  an  amendment  which  no  one 
understands  but  himself  and  the  amendment  is  adopted.  The 
reading  goes  on  and  the  bill  is  passed  as  amended.  In  the  hurry 
and  probable  confusion  of  the  moment,  no  one  but  the  mover  of 
the  amendment  may  know  exactly  what  it  is  or  how  it  affects  the 
nature  and  subject  matter  of  the  bill."45  It  can  be  appreciated  that 
members  are  loath  to  hold  up  amendments  presented  on  third  read- 
ing simply  because  they  do  not  understand  them.  The  course  of 
least  resistence  is  to  remain  quiet  and  acquiesce.  Accordingly 
a  prohibition  upon  all  amendments  on  third  reading  was  inserted 
in  the  New  York  constitution  of  1894,46  which  unfortunately  has 
been  construed  to  admit  amendments  until  the  final  section  of  the 
bill  has  been  read.  Yet  if  amendments  are  adopted  at  this  stage 
final  passage  is  delayed  by  the  constitutional  mandate  that  all  bills 
must  lie  printed  in  final  form  for  three  days  on  the  desks  of 
•members. 

More  than  thirty  legislatures  forbid  by  the  rules  amendments 
f  on  third  reading.  To  amend  a  bill  which  has  reached  this  stage  it 
is  necessary  to  recall  it  to  second  reading,  adopt  the  amendments 
and  advance  it  again  to  third  reading.  The  spirit  of  the  provision- 
is  violated  by  the  practice  of  numerous  legislatures  which  permits 
a  motion  that  the  bill  be  called  back  to  second  reading  and  recom- 
mitted with  instructions  to  report  certain  amendments  forthwith. 

46  From  the  speech  of  a  member  before  the  Constitutional  Convention  of 
New  York,  1894.    Record,  vol.  I,  p.  479. 
«  Art.  Ill,  Sec.  15. 


Passage  of  Bills  81 

Without  leaving  his  place  the  chairman  of  the  committee  designated 
immediately  reports  the  bill  as  amended  and  it  is  restored  to  its 
place  on  third  reading.  Other  states  either  permit  under  the  rules 
amendments  freely  on  third  reading  or  systematically  violate  the 
rules  as  do  Kansas  and  the  Indiana  Senate. 

The  value  of  ordering  a  bill  back  from  third  to  second  reading 
in  order  to  amend  is  therefore  dependent  upon  the  time  which 
elapses  before  the  amended  measure  comes  up  for  final  passage. 
If  Ohio  practice  is  followed,  amendments  on  third  reading  (the  usual 
time  for  amendments  in  Ohio)  are  referred  to  a  select  committee  of 
one,  the  person  proposing  the  amendment  being  named,  who  an- 
nounces immediately  that  he  has  amended  the  bill  as  directed  by 
the  House,  which  acts  on  it  forthwith.  The  measure  then  goes  at 
once  to  final  passage.  Nothing  is  gained  by  this  useless  formula, 
since  all  the  evils  of  hasty  amendment  and  passage  survive.  But 
if  the  bill  called  back  to  second  reading  to  amend  comes  up  on  third 
reading  in  the  order  that  any  bill  does,  if  it  is  called  back  in  fact  so 
that  it  goes  to  the  foot  of  the  third  reading  calendar,  members  have 
time  to  come  to  an  intelligent  conclusion. 

A  more  effective  means  of  attaining  the  desired  end  occurs  in 
the  constitutional  requirement  that  all  amendments  be  printed 
before  being  acted  upon.47  The  experience  of  those  states  whose 
constitutions  contain  such  provisions  has  been  that,  the  temptation 
to  passage  the  moment  after  amendment  being  removed,  the  rule 
which  sends  the  bill  back  to  third  reading  and  compels  it  to  come 
up  in  regular  order  on  third  reading  has  been  observed  in  spirit 
instead  of  being  suspended  by  unanimous  consent.  Of  course  cases 
have  occurred  in  which  the  amendment  was  hastened  to  the 
printer  and  received  back  in  half  an  hour  to  be  passed  hastily,  but 
as  this  involves  considerable  difficulty  they  are  comparatively  rare. 
Whether  the  mandate  that  all  amendments  shall  be  printed  extends 
to  those  which  merely  strike  out  matter  and  propose  nothing  new 

47  California  IV,  15;  Colorado  V,  22;  Idaho  III,  15;  Illinois  IV,  13;  Mis- 
souri IV,  29,  30;  Nebraska  III,  11;  Pennsylvania  III,  4.  Unfortunately  this  has 
been  held  in  Colorado  not  to  apply  to  amendments  recommended  by  conference 
committees.  (Board  v.  Strait,  36  Colo.  137.)  It  may  be  repeated  that  New 
York  very  wisely  requires  the  printing  of  a  bill  in  final  form  three  days  before 
passage.  Missouri  requires  that  all  amendments  be  incorporated  in  the  engrossed 
bill  and  the  engrossed  bill  be  printed. 
7 


82  Procedure  in  State  Legislatures 

has  given  rise  to  some  doubt,  but  better  opinion  seems  that  printing 
anew  is  necessitated.  Pennsylvania  came  to  this  view  in  1913,48 
although  earlier  custom  had  been  to  put  the  bill  on  final  passage  at 
once. 

Amendments  whether  printed  or  not  should  be  attached  by 
responsible  clerks  to  the  copies  of  the  bills  on  the  files  of  members. 
A  busy  legislator  should  be  able  to  refer  easily  to  the  whole  measure, 
but  has  no  time  to  clip  amendments  from  the  journal  and  paste 
them  on  a  copy  of  the  bill.  Vermont  makes  this  possible  in  a  less 
satisfactory  manner  by  printing  on  the  calendar  the  citation  to  the 
page  of  the  journal  on  which  the  amendment  may  be  found,  while 
Massachusetts  inserts  it  therein  in  full. 

Amendments  are  usually  disposed  of  without  roll  call  unless 
the  ayes  and  noes  are  demanded.  Alabama  is  an  exception  to  the 
general  rule  in  that  her  constitution  requires  the  names  of  all  those 
voting  to  be  entered  in  the  journal.49 

It  is  possible  that  a  bill,  passed  by  one  house,  might  be  com- 
pletely modified  by  amendments  introduced  in  the  other.  These 
amendments  might  then  be  adopted  by  the  first  house  without  a 
roll  call.  The  measure  in  its  final  form  would  thus  escape  a  recorded 
vote  in  the  house  of  its  origin,  although  the  constitution  might 
require  an  aye  and  no  vote  on  the  passage  of  all  measures.  In 
order  to  render  this  practice  impossible,  the  constitutions  of  seven 
states  require  that  votes  of  one  house  on  concurring  in  an  amend- 
ment of  the  other  be  entered  on  the  journal.50  Today,  however,  the 
constitutional  prescription  that  final  passage  shall  be  by  ayes  and 
noes  entered  in  the  journal  has  been  generally  interpreted  to  imply 
that,  although  a  bill  has  once  passed  the  house  on  a  recorded  vote, 
concurrence  in  amendments  adopted  afterwards  by  the  other  re- 
quires a  similar  vote.51  Thus  it  becomes  impossible  for  either  house 
to  escape  going  on  record  on  the  measure  in  its  final  form.  Indiana 
is  an  exception  in  that  measures  returned  with  amendments  to  be 
concurred  in  do  not  come  up  a  second  time  for  final  passage  but  are 
accepted  by  a  viva  voce  vote. 

48  Legislative  Journal,  1913,  p.  3632. 

49  Alabama  IV,  64.     Of  course  it  does  not  follow  that  there  is  always  a  real 
roll  call. 

60  Colorado  V,  23;  Louisiana  40;  Mississippi  IV,  62;  Missouri  IV,  32;  Penn- 
sylvania III,  5;  Virginia  IV,  5;  West  Virginia  VI,  31. 

61  The  constitutions  of  three-fourths  of  the  states  contain  this  provision. 


Passage  of  Bills  83 

The  prevailing  practice  in  considering  amendments  made  by 
one  house  to  measures  which  have  already  passed  the  other  lends 
itself  to  grave  abuse  through  the  power  of  the  presiding  officer  to 
call  them  up  at  will  as  messages  from  the  other  house.  He  is  thus 
enabled  to  select  the  most  favorable  time  to  rush  concurring  action. 
Such  control  over  the  fate  of  amendments  would  be  destroyed  if  a 
special  order  of  business  were  devoted  to  consideration  of  messages 
from  the  other  house,  and  if  amendments  in  which  concurrence  is 
desired  were  placed  on  the  calendar.  Precautions  of  this  nature 
are  taken  in  Vermont.  Not  only  are  members  informed  of  amend- 
ments from  the  other  house  by  their  appearance  in  full  on  the  cal- 
endar, but  a  definite  time  is  set  aside  for  their  consideration  under 
the  order  of  business  of  Senate  (or  House)  proposals  of  amendment. 
A  rule  of  the  New  York  Assembly  is  likewise  designed  to  assure  de- 
liberation on  such  proposals.  Amendments  made  in  the  Senate  to 
measures  passed  by  the  House  are  to  be  referred  to  the  committee 
which  originally  reported  the  measure,52  but  unfortunately  this  is 
never  observed. 

There  remains  one  possible  reform  concerning  the  treatment 
of  amendments  which  can  be  stated  very  briefly.  Under  general 
parliamentary  law  amendments  once  adopted  by  the  house  on 
second  reading  cannot  be  struck  out  on  third  reading  unless  a  mo- 
tion to  reconsider  has  been  carried.  Motions  to  reconsider  involve 
retracing  the  steps  by  which  the  bill  passed  second  reading  and  are 
subject  to  the  restriction  that  they  must  be  made  within  a  certain 
time,  usually  twenty-four  hours  after  the  vote  proposed  to  be  recon- 
sidered has  been  taken.  Great  inconvenience  is  apt  to  arise  from 
the  difficulty  of  modifying  an  amendment  once  adopted,  should  a 
minority  prove  obstructive.  On  the  other  hand,  amendments  pro- 
posed by  a  committee,  although  adopted  by  the  house  when  it  agrees 
to  the  report  of  the  committee,  are  not  treated  as  an  integral  part  of 
the  bill  and  can  be  altered  or  stricken  out  at  will.  The  suggestion 
here  is  simply  to  provide  a  similar  method  of  striking  out  amend- 
ments offered  from  the  floor  and  adopted  at  second  reading,  should 
they  be  found  undesirable  at  third  reading. 

62  Assembly  Rule  11. 


84  Procedure  in  State  Legislatures 

ROLL  CALLS  ON  FINAL  PASSAGE 

Roll  call  on  the  passage  of  each  measure  is  required  by  the 
constitutions  of  thirty-six  states.53  The  New  England  States  are 
exceptions.  Among  them,  however,  the  ayes  and  noes  may  be 
demanded  by  a  fraction  of  the  members.  The  constitutional 
requirement  of  the  roll  call  on  the  final  passage  of  bills,  or  in  con- 
curring in  amendments,  is  of  doubtful  value.  The  journal  of  the 
Ohio  House,  selected  at  random  from  those  of  several  states,  records 
fifty-one  roll  calls  on  the  last  day  of  the  1915  session,  and  twenty 
roll  calls  were  not  unusual  upon  an  ordinary  day,  although  there 
were  121  names  on  the  roll.  On  the  last  day  of  the  1914  session  of 
the  New  York  Assembly  there  were  208  roll  calls,  the  roll  containing 
150  names.  Similar  cases  could  be  multiplied  in  every  state  which 
requires  roll  calls  on  final  passage.  Now  it  is  impossible  to  call  a 
roll  of  150  names  honestly  in  less  than  fifteen  minutes.  On  this 
basis  thirteen  hours  would  have  been  so  consumed  in  the  House  on 
the  last  day  of  the  Ohio  Legislature  and  fifty-two  hours  in  the  New 
York  Assembly.  An  ordinary  day's  session  would  have  to  devote 
five  hours  to  roll  calls,  for  the  states  have  been  slow  to  devise  mechan- 
ical contrivances  for  recording  votes.  Wisconsin  led  the  way  at 
the  present  session  by  adopting  an  electric  voting  machine. 

Roll  calls  on  numerous  measures  are  possible  simply  because 
the  roll  is  not  called.  Go  through  the  journals  of  any  of  the  thirty- 
six  states  mentioned  above  and  you  will  find  measure  after  measure 
upon  which  no  dissenting  voice  was  cast.  Indeed  a  real  division 
will  occur  with  conspicuous  infrequency.  The  results  of  the  208 
roll  calls  in  New  York  to  which  reference  has  been  made,  show  that 
only  fifteen  record  as  many  as  five  votes  in  the  negative,  and  of 
these  only  eleven  could  be  called  real  divisions.  Since  many  meas- 
ures meet  with  no  opposition,  an  experienced  clerk  can  tell  as  soon 
as  he  has  called  half  a  dozen  names  whether  further  call  will  reveal 
any  negative  votes.  If  none  are  apparent  the  rest  of  the  roll  is 
called  very  rapidly  and  a  member  must  watch  carefully  to  catch 
his  name,  if  indeed  it  be  called  at  all.  A  skilled  clerk  of  the  Penn- 
sylvania House  has  been  known  actually  to  call  207  names  in  59 
seconds.  Under  the  short  roll  call  of  New  York,  names  of  but  a 
few  members  are  called  by  the  clerk  and  the  bill  is  declared  passed 

68  Index-Digest  of  State  Constitutions,  pp.  844-845. 


Passage  of  Bills  85 

by  an  arbitrary  number  of  votes.  Several  printed  slips  of  about 
one  hundred  names  are  employed  for  the  purpose  of  making  up  the 
journal;  they  are  pasted  in  the  journal  and  the  names  thereon  are 
recorded  as  voting  in  the  affirmative.  A  member  who  wishes  to  go 
on  record  in  the  negative  must  rise  and  announce  the  fact  to  the 
clerk,  unless  he  has  given  notice  beforehand,  and  his  name  will  be 
crossed  off  the  list  and  written  down  on  the  negative.  In  order 
that  the  records  will  be  consistent  members  who  have  been  excused 
for  the  day  are  crossed  off.  Bills  are  thus  passed  at  the  rate  of  one 
a  minute  sometimes  with  not  more  than  a  corporal's  guard  present.54 
Undoubtedly  the  spirit  of  the  constitution  is  violated.  What  was 
intended  was  an  honest  roll  call  with  opportunity  to  return  aye 
or  no. 

Yet  .perhaps  the  situation  is  not  so  serious  as  some  have  de- 
clared, for  a  practice  so  general  must  have  some  survival  value. 
It  must  be  remembered  that  the  quick  roll  call  is  simply  a  method 
of  acting  by  unanimous  consent  in  cases  in  which  the  constitution 
requires  a  recorded  vote.  Usually  a  member  can  have  a  slow  roll 
call  if  he  asks  for  it,  and  by  the  custom  of  many  legislatures  may 
demand  its  verification.55  True,  insistence  upon  a  slow  roll  call  is 
apt  to  be  unpopular,  for  a  man's  colleagues  are  impatient  to  have 
their  measures  reached;  but  here  again  enters  the  element  of  unani- 
mous consent.  The  use  of  an  electric  voting  machine  would  proba- 
bly increase  the  number  of  real  divisions,  but  business  by  unani- 

64  Mr.  Baker,  addressing  the  New  York  Constitutional  Convention  of  1867 
(Record,  p.  1301)  said:  "I  know  for  a  fact  that  during  the  last  two  days  of  the 
session  the  clerk  passed  more  legislation  than  the  body  of  the  House,  and  it  was 
no  uncommon  thing  to  adjourn  and  leave  the  city,  a  majority  of  the  members 
not  knowing  upon  what  bills  they  had  voted."  So  it  appears  that  the  short  roll 
call  is  no  strictly  modern  invention. 

The  Committee  on  Legislation  of  the  New  York  Citizens'  Union  (Report  for 
1908,  p.  22)  describes  the  technique.  At  that  session  the  clerk  had  four  printed 
lists  of  names  for  the  sake  of  variety;  the  selection  of  the  form  to  be  used  seemed 
arbitrary. 

55  New  York  is  perhaps  an  exception  since  the  presiding  officers  sometimes 
take  the  ground  that  there  must  be  a  substantial  demand  for  a  roll  call,  else  those 
opposed  should  be  content  with  being  recorded  in  the  negative.  (Citizens'  Union, 
Committee  on  Legislation,  Report  1913,  p.  5.)  Of  course  there  have  been  in- 
stances elsewhere  in  which  the  gavel  rule  of  the  speaker  was  very  marked  and 
demands  of  a  few  members  have  been  disregarded,  but  such  are  occasional  and 
grow  out  of  conditions  more  serious  than  problems  of  procedure. 


86  Procedure  in  State  Legislatures 

mous  consent  would  continue  in  the  absence  of  a  quorum,  since 
the  record  of  the  machine  could  be  modified  upon  the  journal  to 
meet  constitutional  mandates.56  If  the  constitutional  requirement 
of  a  roll  call  on  any  and  all  measures  were  abolished,  a  record  of 
real  divisions  would  still  be  preserved  through  the  power  of  a  small 
minority  to  demand  the  ayes  and  noes.  During  the  1916  session 
of  the  Massachusetts  House  there  were  but  eighty-nine  roll  calls 
on  all  subjects,  yet  each  represented  a  real  division  of  opinion.  The 
true  explanation  of  the  short  roll  call  is  found  in  the  anxiety  of  mem- 
/  bers  to  speed  up  legislation  upon  which  they  have  not  had  time  to 
form  opinions,  and  to  seek  for  fundamental  reform  through  new 
methods  of  voting  is  to  mistake  symptoms  for  causes. 

COUNTING  A  QUORUM 

The  simple  expedient  of  counting  towards  a  quorum  those 
physically  present  although  the  fact  is  not  revealed  by  a  roll  call, 
following  Speaker  Reed's  famous  ruling  of  1890,  is  now  generally 
accepted  by  the  states,  even  finding  a  place  in  the  rules  of  a  few.57 
Speaker  Reed  and  those  who  supported  him  were  able  to  find  numer- 
ous precedents  among  the  state  legislatures.58  In  1874  the  Speaker 
of  the  Massachusetts  House  ruled  that  the  constitutional  require- 
ment of  a  quorum  was  satisfied  by  physical  presence,  and  in  1883 
the  president  of  the  Pennsylvania  Senate  counted  a  quorum.  Fol- 
lowing the  punishment  in  1882  of  a  member  for  contempt  in  refusing 
to  vote,  the  more  expeditious  method  was  likewise  adopted  in  1883 
by  the  New  York  Senate.  At  the  session  of  1892  the  same  body 
fell  back  upon  the  older  practice  of  punishing  for  contempt  members 
refusing  to  vote,  although  it  seems  evident  that  the  purpose  was  to 
find  authority  for  measuring  vengeance  to  three  senators.59  How- 

66  The  introduction  of  an  electric  voting  machine  in  Wisconsin  has  been 
wholly  beneficial,  inasmuch  as  the  number  of  roll  calls  has  been  increased  and  life 
injected  into  the  session  generally.    Wisconsin  requires  no  roll  calls  on  final  pas- 
sage unless  on  demand  of  one-sixth  and  therefore  each  is  a  real  division.    The 
time  consumed  being  negligible,  the  temptation  to  short  roll  calls  where  the  ma- 
chine is  used  would  be  materially  reduced. 

67  Found  in  the  rules  of  the  Florida,  New  York  and  Ohio  Senates.     By  the 
rules  of  both  houses  of  Virginia  members  present  but  not  voting  shall  on  the  de- 
mand of  one  be  counted  in  the  negative.     (House,  69;  Senate,  51.) 

68  See  Congressional  Record,  51  Cong.,  1  Sess.,  pp.  915-916;  1161-1162;  1234. 
Indiana,  Massachusetts,  New  York,  Ohio  and  Pennsylvania  were  cited. 

69  See  Brooklyn  Eagle,  Jan.  27,  1892. 


Passage  of  Bills  87 

ever,  in  1902  counting  a  quorum  was  legalized  by  specific  rule.60 
The  legislatures  of  practically  all  the  states  require  by  rule  that  a 
member  vote  and  that  failure  to  do  so  constitutes  contempt,  but  if 
threat  of  contempt  should  fail  the  body  would  doubtless  resort  to 
counting  a  quorum.61  It  is  questionable,  as  Speaker  Reed  said  in 
a  letter  to  a  member  of  the  New  York  Convention  in  1894,  whether 
an  assembly  has  the  right  to  make  a  man  vote.  A  person  with  no 
opinion  should  not  be  made  to  express  one;  it  is  enough  that  he  be 
compelled  to  acquiesce  in  the  result  and  the  fact  of  a  quorum  is  not 
disturbed  by  his  silence.62 

ENGROSSMENT  AND  ENROLLMENT 

It  is  worth  while  to  devote  some  attention  to  the  preparation 
of  the  official  copy  of  bills  and  to  the  safeguards  employed  against 
dishonest  or  careless  engrossments  and  enrollments.  Except  in 
New  England  the  engrossed  copy  is  the  one  specially  prepared  for 
passage  as  the  authorized  bill.  Having  received  the  approval  of 
both  houses  the  enrolled  bill,  now  in  the  form  of  an  act,  is  made 
from  the  engrossed  bill.  After  being  signed  by  the  presiding  officers 
of  both  houses  the  enrolled  measure  goes  to  the  governor  for  his 
approval.  Upon  receiving  his  signature  it  becomes  the  official 
statute.  When  reading  the  rules  of  the  New  England  states,  how- 
ever, it  is  well  to  remember  that  the  " engrossed"  bill  refers  to  the 
copy  which  goes  to  the  governor. 

Due  to  better  systems  of  engrossing  and  enrolling  and  the  use 
of  the  printing  press  involving  checking  by  expert  proof  readers, 
scandals  growing  out  of  fraudulent  copies  are  not  so  common  as 
formerly.  In  the  prosperous  days  following  the  Civil  War  when 
industry  broke  into  unprecedented  activity,  the  possibilities  of 
special  legislation  were  discovered  and  special  interests  often  prof- 
ited through  incorrect  enrollments.  "Such  was  the  pressure  upon 

60  It  may  be  noted  that  as  early  as  1858  a  proposal  to  incorporate  "counting 
a  quorum"  in  the  rules  had  been  made  in  the  Pennsylvania  Senate.     It  was  dis- 
agreed to  because  it  was  not  thought  that  a  man  could  be  put  down  on  a  quorum 
until  he  voted  and  the  method  of  punishing  for  contempt  was  adopted  instead. 

61  For  example,  Michigan  House  Journal  1899,  pp.  993,  1207;    and  House 
Journal  1893,  p.  1700. 

82  The  letter  appears  in  the  Revised  Record,  New  York  Convention,  1894, 
vol.  I,  p.  450. 


88  Procedure  in  State  Legislatures 

the  legislature  that  it  became  the  habit  to  prepare  laws  for  the  sig- 
nature of  the  governor  which  had  never  passed  the  legislature."63 

In  order  to  insure  purity  of  text,  the  rules  now  generally  pro- 
vide that  before  final  passage  bills  shall  be  engrossed  under  the 
supervision  of  a  committee.  This  committee  renders  very  inade- 
quate supervision,  the  work  being  delegated  to  clerks.  In  New 
York,  where  the  constitution  requires  printing  in  final  form  before 
passage,  bills  are  rarely  passed  without  being  engrossed  by  printing. 
The  proof  is  read  by  experts  who  have  an  office  in  the  capitol.  In 
other  states,  however,  the  rule  requiring  engrossment  is  often  evaded 
by  a  motion  that  the  bill  be  considered  engrossed  and  ordered  to  a 
third  reading,  and  thus  it  is  possible  for  third  reading  to  follow 
immediately  upon  second.64  Where  the  custom  of  combining  third 
reading  with  second  prevails,  as  in  Minnesota,  Washington  and 
West  Virginia,  it  is  impossible  for  bills  to  be  engrossed ;  and  Wash- 
ington recognizes  this  by  specifying  that  all  amendments  are  to  be 
pasted  securely  on  the  original  bill.  Frequently  bills  are  engrossed 
only  in  case  that  they  have  been  altered  after  introduction;  other- 
wise the  copy  introduced  continues  to  be  official  until  enrollment.65 
If  no  engrossed  copy  is  made,  the  original  bill,  or  a  printed  copy 
thereof,  in  possession  of  the  clerk,  with  amendments  fastened  upon 
it,  is  official.66  The  plan  of  Michigan  and  New  Jersey  of  making 
one  of  the  printed  copies  the  official  bill  throughout  its  legislative 
career  is  a  good  one.  It  then  corresponds  line  for  line  to  the  copies 
in  the  hands  of  the  members  and  the  clerk  thereby  avoids  the  dif- 
ficulty of  identifying  the  places  for  proposed  amendments  upon  a 
copy  different  from  that  in  their  possession. 

The  preparation  of  the  enrolled  measures,  done  sometimes  by 
printing,  sometimes  by  typewriter,  sometimes  in  long  hand,67  is 

63  Samuel  Dickson  in  the  Presidential  Address  before  the  Pennsylvania  Bar 
Association,  1896.     See  also  Debates  of  New  York  Constitutional  Convention, 
1867,  p.  1303. 

64  No  bills  have  been  engrossed  in  Iowa  since  1907  although  the  rules  pre- 
scribe that  they  shall  be.     (Shambaugh,  "Statute  Law  Making  in  Iowa,"  p.  230.) 

65  The  recognized  practice  in  Arkansas,  North  Carolina,  Idaho,  North  Dakota 
and  Wisconsin. 

66  Connecticut,  Nevada,  New  Hampshire,  Ohio,  Pennsylvania,  Rhode  Island, 
Vermont,  Virginia  and  Washington  follow  this  method. 

67  See  Bulletin  No.  4  of  the  Nebraska  Legislative  Reference  Bureau  for  a  table 
showing  methods  of  engrossment  and  enrollment  in  the  several  states. 


Passage  of  Bills  89 

likewise  supervised  by  committees  which  report  that  they  are  cor- 
rectly enrolled.  But  again  the  oversight  is  of  the  most  casual  sort. 
In  the  Pennsylvania  House  the  committee  charged  with  this  func- 
tion numbers  twenty-five,  divided  into  groups  of  three  to  expedite 
the  work;  but  bills  are  rarely  examined  by  members,  the  real  work 
being  left  to  clerks,  although  the  official  clerk  of  the  enrolling  com- 
mittee is  supposed  to  sign  enrolled  measures  as  a  sort  of  voucher. 
The  method  of  enrollment  in  Vermont  makes  it  virtually  impossible 
to  correct  errors  which  may  appear  at  this  stage.  The  original  bill 
with  amendments  written  or  pasted  thereon  goes  to  the  governor 
for  approval.  Later,  perhaps  after  the  adjournment  of  the  legis- 
lature, the  engrossing  clerk  copies  the  act  into  a  book,  and  the  pre- 
siding officers  of  the  two  houses  and  the  governor  meet  in  the  sec- 
retary of  state's  office  and  sign  it. 

The  great  defect  of  most  systems  occurs  in  the  fact  that  the 
real  work  is  not  done  by  responsible  men,  so  that  blame  for  errors 
can  be  clearly  located.  To  this  end  it  would  be  well  to  make  a 
regularly  established  state  official  responsible  for  correct  enroll- 
ment. In  1911  the  Senate  of  Wisconsin  abolished  committees  on 
enrolled  and  engrossed  bills  and  placed  the  duty  of  reporting 
measures  as  correctly  enrolled  upon  the  chief  clerk.  It  may  be 
suggested  that  legislative  reference  libraries  could  to  advantage  be 
entrusted  with  this  responsibility.  In  South  Dakota  the  chief  of 
the  engrossing  staff  must  initial  each  page  as  a  verification  of  its 
correctness,68  and  by  the  laws  of  Connecticut  the  engrossing  clerk 
must  certify  with  his  signature  that  each  bill  is  correctly  prepared.69 
By  a  curious  provision  of  the  South  Carolina  Code,  county  solicitors 
are  required  to  attend  upon  sessions  of  the  legislature  to  assist  in 
drawing  up  bills  and  to  supervise  engrossment  and  enrollment  of 
the  same.  Each  bill  must  be  certified  by  one  of  these  officers  as 
correctly  enrolled.70  Maine,  Massachusetts  and  New  Hampshire 
provide  that  the  work  be  done  in  the  secretary  of  state's  office. 
California,  Kentucky,  New  York,  North  Dakota  and  Utah  have  by 
statute  made  fraudulent  alteration  of  the  enrolled  measure  a  felony 
and  New  Mexico  by  constitutional  provision. 

The  constitutions  of  thirty-three  states  require  that  the  en- 

68  Laws  of  1909,  Chap.  123. 

69  General  Statutes  (1902),  Par.  36. 

70  South  Carolina  Code  (1912),  Par.  23. 


90  Procedure  in  State  Legislatures 

rolled  bill  be  signed  by  the  presiding  officers  of  both  houses,  twenty- 
two  prescribing  that  it  be  done  in  the  presence  of  the  assembled 
body.71  An  attempt  was  thus  made  to  provide  an  additional  guar- 
antee against  the  signing  of  bills  irregularly  passed.  A  situation 
which  arose  recently  in  Indiana  raised  the  question  as  to  the  respon- 
sibility of  these  officers.  Two  bills  which  had  never  passed  the 
legislature  were  signed  by  the  presiding  officers  and  later  by  the 
governor.  The  grand  jury  sitting  to  investigate  the  responsibility 
for  the  affair  reported  that  the  speaker  of  the  House  and  the  presi- 
dent of  the  Senate,  who  had  wrongfully  signed  the  measures,  were 
in  no  way  Ifable.72 

Upon  the  question  whether  the  enrolled  bill  controls  the  en- 
grossed bill  in  case  of  discrepancy  between  them,  the  courts  have 
not  been  in  agreement;  although  the  attitude  consistent  with  the 
widely  accepted  principle  that  the  enrolled  bill  is  final,  would  favor 
making  it  the  conclusive  copy.73 

71  Index-Digest,  State  Constitutions,  p.  846.     A  similar  provision  failed  in 
the  Constitutional  Convention  of  New  York  in  1894  because  it  was  feared  that 
the  presiding  officers  would  be  invested  with  the  veto  power.    (Record,  vol.  I,  pp. 
906  et  seq.)    The  prevailing  opinion  of  the  courts  has  been,  however,  that  failure 
to  sign  in  no  way  invalidates  the  act,  as  the  only  function  of  the  signatures  is  to 
furnish  evidence  in  the  absence  of  which  recourse  may  be  had  to  the  journals. 
Commissioners  v.  Higginbotham,  17  Kan.  62;   Taylor  v.  Wilson,  17  Neb.  88;  But 
see  Burritt  v.  Com'rs,  120  111.  322;  and  Douglas  v.  Bank,  1  Mo.  24;  also  State  v. 
Kiesewetter,  45  Ohio  St.  254,  where  the  provision  was  held  mandatory. 

72  From  the  text  of  the  report  of  the  grand  jury  to  the  Governor.     Indian- 
apolis News,  Dec.  5,  1914. 

73  So  held  in  Division  of  Howard  County,  15  Kan.  194.     But  see  contra  Berry 
v.  Railroad,  41  Md.  446;  Brady  v.  West,  50  Miss.  68.     Also  Moog  v.  Randolph, 
77  Ala.  597.     Where  material  divergence  exists  between  the  engrossed  measure 
and  the  enrolled  act  the  bill  approved  by  the  governor  is  not  the  one  which  passed 
the  houses  and  therefore  never  became  law.     In  State  v.  Swan,  7  Wyo.  166,  one 
section  of  the  act  was  void  as  being  enrolled  by  mistake. 


CHAPTER  VI 
LEGISLATIVE   LEADERSHIP 

We  must  finally  examine  the  preparation  of  a  daily  legislative 
program,  to  discover  how  far  the  houses  follow  a  fixed  arrangement 
of  business.  The  question  of  the  control  of  the  time  of  the  house 
and  the  extent  to  which  individual  members  have  surrendered 
themselves  to  the  guidance  of  leaders  is  involved.  The  matter  of 
controlling  the  limits  of  debate  necessitates  no  complex  system  of 
rules  since  a  minority  anxious  to  discuss  measures  is  absent.  With 
the  exception  of  the  rush  days  at  the  close  the  houses  do  not  sur- 
render control  of  their  time  to  any  special  group.  The  legislatures 
of  Georgia  and  Washington  are  perhaps  exceptions  in  that  from  the 
first  of  the  session  the  calendar  of  the  latter  is  under  the  jurisdiction 
of  the  rules  committee,  while  in  the  former  all  motions  to  interrupt 
the  regular  order  must  be  referred  to  the  same  committee.1  In  the 
Georgia  Senate  no  request  for  unanimous  consent  to  suspend  this 
rule  will  be  heard.2 

THE  CALENDAR 

The  daily  program  takes  the  form  of  a  calendar  upon  which 
measures  appear  in  the  order  in  which  they  are  to  be  taken  up. 
Appropriation  bills  sometimes  have  preference  by  being  placed  at 
the  head  of  the  list.3  Usually  the  calendar  is  printed  daily,  although 
sometimes  it  is  merely  posted  as  a  bulletin,  as  in  Nebraska,  Nevada 
and  South  Dakota.  In  some  of  the  more  backward  states  as  Arkan- 
sas, Indiana,  Montana  and  North  Carolina,  the  clerk  merely  keeps 
a  list  of  measures  in  their  regular  order. 

The  evils  of  such  a  lax  method  are  twofold.  Great  power  over 
the  calendar  is  put  in  the  hands  of  the  speaker  inasmuch  as  with 
him  rests  the  selection  of  bills  to  be  handed  down  for  the  considera- 
tion of  the  house.  He  is  consequently  enabled  to  reserve  measures 
until  an  opportune  time,  either  favorable  or  unfavorable  to  their 

1  Washington  House  Rule  2;  Georgia  House  Rule  42,  Senate  Rule  137. 

2  Senate  Rule  40. 

3  Georgia,  even  over  specfal  orders;  Kansas,  Mississippi  under  the  constitu- 
tion, and  Pennsylvania. 

[91] 


92  Procedure  in  State  Legislatures 

passage,  without  the  members  being  much  the  wiser.  In  the  second 
place  the  members  are  ignorant  of  the  time  at  which  bills  are  to 
come  up.  The  absolute  right  of  members  to  be  informed  in  advance 
as  to  what  business  is  to  come  up  really  constitutes  the  essential 
reason  for  the  daily  printed  calendar.  As  a  select  committee  of  the 
Commons  declared  in  1861,  certainty  from  day  to  day  of  the  busi- 
ness to  be  transacted  is  the  great  aim  of  procedural  reform.  Each 
member,  furthermore,  should  be  able  to  rely  upon  the  carrying  out 
of  the  program  laid  down.4  Nevertheless,  slight  investigation  will 
reveal  that  our  state  legislatures  have  attained  this  ideal  very 
imperfectly.  Although  as  a  rule,  matters  not  upon  the  calendar  are 
denied  consideration,  a  few  states,  however,  reporting  to  the  con- 
trary that  business  not  upon  the  calendar  is  often  taken  up,5  the 
value  of  the  calendar  as  a  program  of  the  day's  activities  is  materially 
lowered  by  the  general  custom  of  admitting  measures  to  considera- 
tion out  of  their  regular  order.  The  practice  of  granting  leave  to 
take  up  measures  ahead  of  their  turn  obtains  generally  in  states  in 
which  the  calendar  is  allowed  to  become  overcrowded.  If  steering 
committees  are  not  employed,  calendar  rules  are  practically  dis- 
regarded the  last  few  days  of  the  session.  For  example,  in  one  day, 
selected  at  random  about  two  weeks  from  the  end,  the  Illinois 
House  by  unanimous  consent  suspended  the  regular  order  thirty- 
two  times,  permission  to  suspend  being  withheld  but  twice. 

The  force  of  the  calendar  is  also  weakened  by  "passing"  a 
measure  when  it  comes  up  in  its  regular  order.  If  such  practice 
prevails,  there  can  be  no  certainty  that  a  measure  will  be  acted  upon 
when  reached.  In  many  legislatures  a  member  to  secure  considera- 
tion for  a  bill  must  call  it  up  at  the  debate  stage,  but  if  he  thinks 
the  time  inopportune  he  neglects  to  do  so  and  another  than  the 
sponsor  will  not  usually  request  its  consideration.  By  the  rules  of 
Pennsylvania  a  bill  may  be  passed  for  two  weeks  before  being 
dropped  from  the  calendar.6  Pennsylvania  also  keeps  a  postponed 
calendar  of  bills  on  third  reading  on  which  a  measure  goes  at  the 

4  Report  of  Select  Committee  of  the  Commons  on  Business  of  the  House, 
1861,  pp.  iii-xii.    Cited  by  Redlich,  "Procedure  of  House  of  Commons,"  vol.  I, 
p.  98. 

5  Alabama,   Arizona,   Minnesota,   Nebraska  and   New  Jersey.     Oklahoma 
enforces  the  calendar  strictly  but  reserves  some  time  just  after  convening  and 
before  adjourning  for  consideration  of  matters  not  on  the  calendar. 

6  House  Rule  35. 


Legislative  Leadership  93 

request  of  the  sponsor,  who  is  thus  given  a  chance  to  marshal  his 
forces  and  to  seize  a  more  promising  moment  later  to  put  his  meas- 
ure to  vote.7  Members  avail  themselves  of  this  privilege  frequently. 
Missouri  possesses  the  same  device  in  an  " informal"  calendar.  In 
those  states  in  which  custom  permits  a  measure  on  the  calendar  to 
come  up  automatically  in  its  turn  without  the  necessity  of  a  member 
calling  it  up  for  consideration,  it  is  usual  to  "pass"  a  measure  if 
there  is  a  request  to  do  so,  although  in  some  cases  it  may  lose  its 
favorable  position  on  the  calendar.  Ohio  practice,  however,  permits 
a  bill  "passed"  on  the  calendar  by  a  majority  vote  to  be  placed  at 
the  head  of  the  list  for  the  day  following.8  A  blanket  motion  may 
extend  this  favor  to  over  one  hundred  measures  at  a  time  and  thus 
disturb  the  order  most  effectually.  A  bill  "  passed  "  on  the  calendar 
once  in  Connecticut  or  twice  in  California  is  sent  to  the  foot  unless 
saved  by  a  two-thirds  vote.9 

In  accordance  with  the  principle  that  a  member  should  know 
with  a  great  degree  of  certainty  what  measures  are  to  come  up  in 
the  day's  business,  a  simple  majority  should  not  be  able  to  violate 
the  regular  order  without  due  notice.  It  has  sometimes  been  urged 
by  those  who  had  in  mind  meritorious  legislation  which  failed 
because  the  majority  could  not  act  immediately  as  they  desired, 
that  the  majority  should  at  all  times  be  master  of  the  time  of  the 
house  by  being  able  to  change  the  order  of  business  at  any  time.10 
But  the  minority  also  deserves  protection  from  the  snap  tactics  of 
the  majority,  and  to  this  end  notice  of  all  motions  to  suspend  the 
calendar  should  be  imperative.  Due  notice  having  been  served  in 
advance,  a  simple  majority  would  be  sufficient  to  carry  the  motion. 
This  is  the  practice  in  New  York.11  The  rule  prevailing  in  some 
states,  making  necessary  a  two-thirds  or  three-fourths  vote  to  sus- 
pend the  order,  gives  undue  power  to  the  minority,  who  are  entitled 
to  no  such  consideration  if  they  have  been  properly  notified. 

7  House  Rule  68.    Since  the  session  of  1913  measures  not  called  up  from  this 
calendar  within  five  days  are  dropped. 

8  Joint  Rule  21  and  House  Journal  1915,  p.  1117. 

9  Connecticut  House  Rule  9,  Senate  22;  California  Assembly  Rule  14,  Senate 
Rule  40. 

10  Urged  by  Illinois  Voters'  League  (Bulletin,  Nov.  20,  1914)  and  adopted  in 
Illinois  in  1915.     The  majority  in  the  lower  house  must  be  absolute.     Haines, 
"Minnesota  Legislature  of  1909,"  recommends  the  same. 

11  Senate  Rule  44,  Assembly  Rule  45. 


94  Procedure  in  State  Legislatures 

Much  could  be  done  towards  introducing  order  and  certainty 
into  the  proceedings  of  the  houses  by  improved  methods  of  com- 
piling the  calendar.  Broadly  speaking,  all  contemplated  actions 
which  could  possibly  give  rise  to  discussion  should  appear  on  the 
daily  printed  program.  This  means  that  all  bills  on  second  read- 
ing, third  reading  or  final  passage  should  be  shown.  If  second 
reading  occurs  before  reference,  the  report  of  the  committee  should 
go  on  the  calendar  before  it  is  acted  upon  inasmuch  as  debate  is 
likely  to  occur  at  this  stage.  Yet  the  calendars  of  some  states,  as 
Alabama  and  Iowa,  show  bills  only  on  third  reading.  When 
measures  are  referred  to  the  committee  of  the  whole,  general  orders 
should  be  included  in  the  calendar  as  is  done  in  Arizona,  Kansas, 
Michigan,  Minnesota,  Oklahoma  and  the  New  York  Senate.  A 
material  defect  of  the  Massachusetts  calendar  is  its  failure  to  show 
measures  up  for  final  passage,  a  step,  which,  it  will  be  recalled, 
does  not  occur  until  the  bill  has  been  returned  from  the  other  house 
with  engrossment  concurred  in.  Although  final  passage  is  thus 
rendered  largely  perfunctory  it  is  the  crowning  stage  of  the  bill's 
career  and  setting  the  time  at  which  it  is  to  occur  should  not  be 
left  so  completely  in  the  hands  of  the  speaker.  As  noted  above, 
however,  the  speaker  will  inform  any  interested  member  of  the 
time  at  which  a  certain  measure  is  to  come  up. 

Measures  should  be  set  forth  by  title,  as  is  done  generally,  and 
not  by  number  merely,  as  in  Illinois,  Maryland  and  New  Jersey. 
If  bill  dockets  or  bill  indexes  are  published  regularly  a  complete 
history  of  the  bill  is  superfluous,  but  brief  summaries,  as  included 
in  the  calendars  of  California  and  Iowa,  would  act  as  a  ready  refer- 
ence. If  a  bill  has  been  amended  at  any  time  the  fact  should  be 
noted  and,  if  copies  of  all  amendments  are  not  placed  in  proper 
order  in  members'  files  by  clerks,  citations  to  the  pages  in  the  jour- 
nals where  they  may  be  found  should  be  included.  Vermont  calen- 
dars include  such  citations,  but  Massachusetts  goes  farther  and 
prints  all  amendments  in  full  in  the  calendar,  thus  guaranteeing 
.that  they  shall  be  available  to  members  at  the  time  action  is  to  be 
taken  thereon.  It  goes  without  saying  that  all  special  orders  should 
appear  on  the  calendar  and  that  all  that  has  been  said  about  bills 
applies  with  equal  force  to  resolutions. 

There  remain  three  other  orders  of  business  of  which  members 
should  be  advised  beforehand  since  they  will  be  called  upon  to  assert 


Legislative  Leadership  95 

an  opinion  upon  them.  First,  reports  of  committees  recommend- 
ing amendments  should  appear  in  full  on  the  calendar  before  adop- 
tion. As  pointed  out  above,  this  is  absolutely  essential  if  the  report 
stage  is  likewise  the  debate  stage.  But  even  if  debate  should  be 
postponed  and  the  committee's  report  adopted  indifferently,  mem- 
bers should  be  warned  of  proposed  changes  which  may  alter  the 
very  nature  of  a  bill. 

In  the  second  place,  following  the  example  -of  Wisconsin, 
motions  to  reconsider  should  be  required  to  hang  over  one  day  and 
should  find  a  place  on  the  calendar.  Other  motions  which  must  lie 
over  one  day,  such  as  a  motion  to  discharge  a  committee,  likewise 
appear  on  the  Wisconsin  calendar  under  the  head  of  "  Motions  for 
Consideration,"  while  Arizona,  after  the  manner  of  Congress,  main- 
tains a  calendar  of  motions  to  discharge  committees.  It  will  be 
recalled  that  the  practice  of  Parliament  requires  that  a  notice  of 
motion  must  be  given  for  practically  all  orders  of  business. 

And  finally,  amendments  made  by  the  second  house  to  bills 
which  have  already  passed  the  first  should  appear  on  the  calendar. 
Concurrence  by  the  house  in  which  the  measure  originated  in 
amendments  of  the  other  may  be  a  crucial  point  in  the  career  of  the 
bill,  and  it  should  not  be  treated  in  the  loose  manner  which  generally 
prevails.  The  Vermont  practice  by  which  such  amendments  appear 
in  full  on  the  calendar  is  to  be  commended.  Reports  of  conference 
committees  should  receive  similar  consideration.  It  is  submitted 
that,  were  the  calendar  compiled  along  the  lines  set  forth  here,  a 
considerable  influence  would  be  set  at  work  to  compel  adherence  to 
a  previously  arranged  program. 

With  two  or  three  exceptions  no  effort  has  been  made  to  dis- 
tinguish between  different  kinds  of  legislation  on  the  calendar.  As 
noted  above  a  very  few  give  a  preferential  place  to  appropriation 
bills.  Separation  of  private  and  general  bills  would  be  a  distinct 
gain  as  tending  to  call  attention  to  their  different  natures.  In  1895 
the  Governor's  Commission  of  the  New  York  Legislature  recom- 
mended that  three  calendars  be  adopted,  viz.,  a  private  and  local 
calendar,  a  cities  calendar,  and  a  general  calendar;  and  that  certain 
days  be  set  apart  for  certain  calendars.  Mondays  and  Saturdays 
were  to  be  devoted  to  private  and  local  measures,  thus  keeping 
interested  ones  at  the  capitol  over  the  week-end  and  reserving  more 


96  Procedure  in  State  Legislatures 

general  legislation  for  mid-week  when  a  full  Kouse  would  be  present.12 
The  calendar  of  the  Maryland  Senate  recognizes  the  principle  to  the 
extent  of  grouping  local  and  general  bills  separately  on  the  calendar. 
In  those  states  which  still  retain  the  committee  of  the  whole  no 
general  principles  regarding  the  nature  of  the  measures  to  be  placed 
on  " General  Orders"  are  applied.  Late  in  the  session  this  calendar 
often  becomes  a  graveyard  for  most  bills  which  have  been  unable 
to  escape  it,  and  growing  large  because  not  disposed  of,  serves  as  a 
place  where  a  few  measures  of  doubtful  virtue  may  be  held  for  the 
purpose  of  passing  in  a  hurry  at  the  close.13 

The  value  of  the  calendar  would  be  much  enhanced  if  it  were 
placed  in  the  hands  of  members  one  day  before  matters  thereon  are 
to  be  considered.  Urged  repeatedly  in  New  York,  this  has  been 
adopted  in  Wisconsin.14  According  to  the  rules  of  Connecticut  also, 
matters  must  appear  on  the  calendar  one  day  before  being  taken  up. 
When  ready  for  action  they  are  marked  with  a  cross.  Thus  a  meas- 
ure which  has  been  on  the  calendar  for  one  day  will  thereafter  be 
"starred  for  action."  The  value  of  the  rule  in  Massachusetts 
requiring  matters  to  lie  over  one  day  before  action  has  been  much 
enhanced  in  the  Senate  by  the  practice  of  publishing  on  the  calendar 
all  matters  which  are  to  appear  on  the  orders  of  the  day  on  the 
morrow. 

Zeal  and  perseverance  in  clearing  up  the  calendar  at  each 
sitting  would  go  far  towards  relieving  the  congestion  so  generally 
attending  the  closing  days.  Nevertheless  it  is  the  almost  universal 
report  that  no  effort  is  made  to  clear  the  calendar  each  day.  Work 
consequently  is  allowed  to  .accumulate  until  the  calendar  no  longer 
sets  forth  a  daily  program  but  serves  merely  as  a  docket  from  which 
the  house  may  select  matters  for  consideration.  The  third  reading 
calendar  of  the  Alabama  House  for  the  twenty-sixth  day  of  a  recent 
session  held  almost  250  measures,  and  the  calendar  of  the  Kansas 
Senate  for  the  same  day  of  the  session  showed  more  than  400  matters 
upon  which  that  body  was  supposed  to  pass  judgment.  Other 

12  New  York  Assembly  Document,  1896,  No.  20.    This  feature  was  introduced 
as  an  amendment  to  the  rules  by  the  Progressives  at  the  1913  session  but  was 
defeated.    (Ass.  J.  p.  15.) 

13  See  Michigan  Constitutional  Convention  Debates  (1907-1908),  p.  147.     In 
the  New  York  Senate  reference  to  the  committee  of  the  whole  towards  the  close 
of  the  session  is  a  polite  way  to  kill  a  measure. 

14  Senate  Rule  19,  House  Rule  21. 


Legislative  Leadership  97 

examples  likewise  chosen  at  random  could  be  multiplied  in  many 
states.  Serious  attention  towards  keeping  abreast  of  the  daily 
program  would  do  much  to  obviate  the  need  for  sifting  committees 
and  for  the  general  suspension  of  the  calendar  rules  as  the  session 
grows  old.  Pressure  would  in  turn  be  placed  on  the  committees  to 
assure  that  they  were  making  consistent  progress  in  their  work. 
Legislatures  which  for  the  sake  of  orderliness  enforce  the  rule  that 
committees  must  make  final  report  on  all  matters  midway  in  the 
session  of  course  find  it  impossible  to  clear  the  calendar  for  weeks 
after  the  expiration  of  the  time,  but  where  the  introduction  of  new 
measures  and  reports  of  committees  continue  until  late  it  is  impera- 
tive that  the  work  assigned  each  day  on  the  calendar  be  completed. 
It  is  deplorable  that  measures  should  ever  be  allowed  to  die  on  the 
calendar.  If  they  are  trivial  they  should  never  get  out  of  com- 
mittee, but  once  out  they  deserve  a  decision  by  the  house. 

Massachusetts  avails  herself  of  a  simple  plan  to  aid  her  in  dis- 
posing of  routine  business  on  the  calendar.  It  has  been  the  experi- 
ence of  many  states  that  matters  on  the  calendar  giving  rise  to 
prolonged  discussion  may  precede  much  routine  business  and  that 
consideration  of  the  latter  is  delayed  as  a  consequence  sometimes  for 
days.  Massachusetts  treats  as  unopposed  business  those  measures 
on  which  members  do  not  indicate  a  wish  to  debate  or  amend.  As 
the  calendar  is  called,  such  matters  are  disposed  of  in  the  routine 
manner.  After  the  calendar  has  once  been  gone  through,  the  speaker 
returns  to  measures  which  members  have  indicated  a  desire  to 
discuss.  Transaction  of  routine  business  accordingly  proceeds 
rapidly  and  is  not  allowed  to  accumulate  on  the  calendar. 

CLOSING  DAYS  OF  THE  SESSION 

The  evils  of  the  glut  of  legislation  so  general  during  the  closing 
days  are  too  well  known  to  merit  discussion  here.  Remembering 
that  the  journals  are  records  of  things  done,  it  is  interesting  to 
examine  the  report  they  give  to  see  how  the  burden  of  work  is  dis- 
tributed throughout  the  session.  The  Journal  of  the  New  York 
Assembly  of  1914  devotes  all  of  the  second  volume  to  a  record  of 
the  last  six  days.  As  noted  above,  there  were  208  roll  calls  on  the 
last  day.  On  an  average  day  near  the  end,  the  Assembly  passed 
fifty-nine  bills  and  advanced  forty-four.  The  final  day  of  the  1915 
session  of  the  Ohio  House  saw  forty-three  measures  passed  and  the 

8 


98  Procedure  in  State  Legislatures 

adoption  of  the  conference  report  on  the  general  appropriation  bill 
containing  347  amendments.  At  the  same  session  of  the  Illinois 
House  the  work  accomplished  the  first  four  months  fills  740  pages 
of  the  journal;  that  of  the  last  month  requires  642  pages  to  report. 
Nor  were  the  earlier  months  spent  in  discussion  on  the  floor,  for  the 
verbatim  reports  of  debates  during  the  first  four  months  fill  625 
pages  while  those  of  the  last  month  fill  655  pages.  Furthermore 
.  the  time  was  not  consumed  in  committee  deliberations,  for  40  per 
cent  of  the  committee  reports  were  rendered  during  the  last  month. 
The  House  simply  did  not  settle  down  to  work  until  four  months  of 
the  session  had  passed.  It  is  generally  recognized  that  the  first 
few  weeks  of  many  sessions  are  wasted.  In  1915  the  New  York 
Legislature  after  sitting  six  weeks  had  passed  eighteen  measures, 
although  1565  had  been  introduced.  In  1916,  fourteen  measures 
were  passed  during  the  same  period,  1314  having  been  introduced.15 

The  congestion  at  the  end  is  not  confined  to  the  large  states. 
The  Idaho  House  passed  or  rejected  fifty-three  measures  in  one  day 
at  the  close  of  a  recent  session.16  Montana  reports  an  equally  serious 
situation,  and  it  has  been  estimated  that  in  past  years  from  80  to 
90  per  cent  of  the  business  of  the  North  Carolina  Legislature  has 
been  ratified  the  last  ten  days. 

The  remarkable  thing  is  that  no  means  have  been  developed 
to  remedy  a  condition  which  is  partly  due  to  lack  of  effective 
organization  throughout  the  session  and  is  partly  psychological. 
Concerning  the  latter  aspect  of  the  situation  it  may  be  said  that 
members  are  anxious  to  get  home,  their  financial  remuneration 
seldom  compensating  them  for  their  absence  from  business.  The 
spirit  of  procrastination,  so  strong  during  the  early  days,  must  now 
be  atoned  for  by  frenzied  action  in  midnight  sessions.  Unanimous 
consent  is  granted  promiscuously  if  business  will  be  advanced 
thereby.  The  only  visible  hope  lies  in  greater  speed.  Even  if  a 
time  limit  upon  the  introduction  of  new  measures  has  been  enforced 
the  calendar  becomes  congested  unless  the  committees  and  the 
house  have  moved  expeditiously  throughout  the  session.17  Amid 

16  From  a  table  prepared  by  the  New  York  Times,  Feb.  21,  1916. 
w  The  Governor's  Message  to  the  Twelfth  Legislature. 

17  A  real  advantage  flows  from  the  enforcement  of  such  a  rule  to  the  extent 
to  which  it  preventffthe  introduction  of  entirely  new  measures  at  the  close  pre- 
paratory to  hasty  passage.    Bills  have  often  been  known  to  have  been  brought 


Legislative  Leadership  99 

such  conditions  a  steering  committee  is  preferable  to  a  general  sus- 
pension of  the  calendar  because  some  measure  of  responsibility  can 
be  exacted.  The  constitutional  provision  requiring  readings  on 
three  separate  days,  if  absolute,  prevents  bills  passing  from  one 
house  to  the  other  within  three  days  of  adjournment;  but  the  Indiana 
clause  which  prohibits  transmission  to  the  governor  on  the-  last  two 
days  of  the  session  merely  advances  the  congestion  forty-eight  hours. 
A  rule  proposed  by  the  Progressives  of  the  New  York  Assembly  in 
1913  would  have  marked  a  real  advance.  Private  and  local  bills 
were  to  be  in  order  on  the  calendar  only  during  January  and  Feb- 
ruary, leaving  at  least  two  months  for  action  on  general  measures 
solely. 

Massachusetts  avoids  the  tumult -of  the  last  days  more  suc- 
cessfully than  do  other  states,  and  it  is  worth  while  noting  the 
means  by  which  she  accomplishes  it.  In  the  first  place,  there  is  no 
limit  upon  the  length  of  the  session,  and  the  legislature  seldom 
adjourns  before  July.  Well-informed  persons  state  that  if  the  ses- 
sion were  shortened,  as  it  is  by  the  constitutions  of  some  states, 
congestion  at  the  end  would  be  unavoidable.18  In  the  second  place 
the  exceptionally  strict  time  limit  upon  the  introduction  of  bills, 
none  being  received  as  a  rule  after  the  second  week,  makes  possible 
the  enforcement  of  the  provision  that  committees  must  report  out 
all  measures  early.19  The  legislature  knows  by  the  middle  of  April 
at  the  latest  how  much  business  remains  to  be  accomplished. 
Furthermore  the  healthy  rivalry  of  committees  in  efforts  to  keep 
their  slates  clean  is  an  incident  of  the  high  development  of  the 
committee  system  in  Massachusetts.  Close  record  is  made  each 
week  of  the  progress  of  work  in  committees,  which  is  compared  with 
similar  periods  of  previous  years,  so  that  the  presiding  officers  are 
enabled  to  apply  pressure  where  necessary.  Summing  up,  we  may 
say  that  the  legislature  of  Massachusetts  makes  sure  that  all  the 

in  the  last  forty-eight  hours,  which  their  proponents  would  not  have  dared  to 
present  unless  they  knew  business  had  so  accumulated  that  no  one  would  have 
time  to  examine  them. 

18  The  Wisconsin  Legislature,  which  maintains  order  to  the  end,  continues  in 
session  from  January  through  July  or  later. 

19  Massachusetts  Joint  Rule  12.    There  is  commendable  hostility  towards  the 
suspension  of  this  rule.    Concurrent  action  by  four-fifths  majority  of  each  house 
is  necessary  to  suspend  it. 


100  Procedure  in  State  Legislatures 

business  which  is  to  engage  the  session  is  introduced  at  the  very 
first.  Committees  at  once  get  busy  and  continue  so  in  order  that 
they  may  return  their 'reports  promptly.  And  finally,  the  houses 
continue  in  deliberation  a  sufficient  length  of  time  to  insure  that 
their  work  will  be  completed  without  confusion  or  disorder. 

LEGISLATIVE  LEADERSHIP 

The  constitutional  fathers  were  so  intent  upon  removing  the 
legislature  from  executive  control  that  the  problem  of  legislative 
leadership  seems  never  to  have  arisen  in  their  minds,  yet  it  has  been 
the  absence  of  responsible  and  definite  direction  within  the  body 
which  has  necessitated  the  development  of  leaders  outside  who, 
hidden  from  public  view,  have  turned  the  opportunity  into  a  source 
of  private  gain.  Our  state  legislators  are  but  human  beings  of  little 
or  no  legislative  experience,  who  are  usually  as  amenable  to  good 
leadership  as  bad;  but  led  they  must  be  and  the  boss  has  filled  a 
real  need.  The  legislatures,  moreover,  have  done  nothing  to  develop 
from  among  themselves  leaders  who  shall  be  responsible  as  such  to 
the  people,  and  the  public  is  suffering  from  the  resulting  aimless- 
ness  of  legislative  activities.  Members  are  as  the  blind  leading  the 
blind.  Willing  to  follow,  they  can  find  no  one  to  guide  them. 

A  study  of  any  of  the  journals  discloses  the  fact  that  the  bodies 
lack  a  consistent  purpose.  Members  are  not  able  to  follow  a  con- 
stant policy,  since  they  vote  on  many  matters  on  which  they  have 
no  opinion.  This  truth  is  illustrated  in  the  number  of  actions  which 
are  reconsidered  and,  what  is  more  noteworthy,  in  the  number  of 
definite  decisions  which  are  reversed.  What  leadership  the  houses 
enjoy  is  provided  by  the  speaker  and  a  few  prominent  committee 
chairmen,  who  stand  forth  partly  because  of  their  experience  or 
force  of  personality,  partly  because  of  the  position  gained  by  them 
under  the  rules,  and  partly  because  of  their  position  in  the  party 
hierarchy.  Their  control  is  often  arbitrary  and  rarely  systematic- 
ally constructive.  This  latter  quality  has  not  been  necessary  because 
they  have  never  been  responsible  to  public  opinion  as  recognized 
leaders. 

THE  SPEAKER 

Remembering  that  discussion  here  must  be  confined  to  that 
phase  of  legislative  leadership  which  is  related  to  questions  of 
procedure,  we  may  note  that  the  member  standing  out  predominant 


Legislative  Leadership  101 

as  the  party  chief  is  generally  the  speaker.  The^ower  which  he 
derives  from  committee  appointments  and  the  reference  of  bills  has 
been  tampered  with  but  little,  as  has  been  shown  above,  ^dis  powers 
through  recognition  of  members  wishing  the  floor  are  extensive  since 
so  large  a  volume  of  business  is  conducted  by  unanimous  consent. 
Usually  in  refusing  recognition  therefor,  aside  from  extreme  cases 
of  arbitrary  and  irregular  conduct,  he  merely  exercises  the  parlia- 
mentary right  of  any  member  to  object  to  the  suspension  of  the 
regular  procedure  by  unanimous  consent.  But  because  of  his 
position,  the  speaker  can  use  this  right  to  enforce  discipline,  when 
an  obscure  member  would  only  incur  the  hostility  of  his  colleagues. 
/Gavel  rule,  under  which  the  speaker  refuses  to  hear  objections 
to  unanimous  consent  or  to  recognize  demands  for  roll  calls,  has 
probably  been  a  subject  of  complaint  at  one  time  or  another  in  all 
our  states.  In  this  the  speaker  is  aided  by  the  confusion  generally 
prevailing  on  the  floor  at  critical  times.  An  example  of  extreme 
control  is  furnished  by  the  fact  that  a  statement  reported  to  have 
been  made  by  the  speaker,  that  there  would  be  no  more  roll  calls 
on  dry  measures  permitted  in  the  House,  was  accepted  as  final  by 
the  Senate.20  A  method  of  gavel  rule  requiring  more  finesse  is  to 
utilize  a  ruling  on  a  point  of  order  to  bring  about  the  desired  result. 
The  inexperience  of  the  majority  of  members  in  parliamentary  prac- 
tice plus  the  element  of  party  solidarity  leads  to  general  agreement 

20  Illinois  Senate  Debates,  1915,  p.  507.  A  typical  case  of  gavel  rule  occurred 
in  the  Pennsylvania  House  of  1911  and  is  fully  set  forth  in  the  Legislative  Journal, 
p.  3028.  A  joint  resolution  was  up  to  amend  the  Constitution  to  provide  for  the 
initiative  and  referendum.  It  failed  on  third  reading  by  a  close  division  without 
record  of  votes,  the  speaker  not  heeding  the  call  for  the  ayes  and  noes,  after  which 
the  following  colloquy  took  place. 

MR.  KELLY  (on  a  question  of  personal  privilege):  "Mr.  Speaker,  I 
called  for  the  yeas  and  nays  on  House  Bill  No.  758  before  House  Bill  No. 
771  was  taken  up." 

SPEAKER:  "The  gentleman  was  not  then  recognized.  The  gentleman's 
objection  will  be  entered  on  the  journal." 

MR.  BALDWIN:  "Mr.  Speaker,  I  rise  to  a  question  of  personal  privi- 
lege." 

SPEAKER:  "The  gentleman  will  state  his  question  of  personal  privi- 
lege." 

MR.  BALDWIN:  "I  desire  to  have  it  noted  that  when  the  gentleman 
from  Allegheny  (Mr.  Kelly)  called  for  the  ayes  and  noes  on  agreeing  to  House 
Bill  No.  758  on  third  reading,  I  seconded  the  call." 
SPEAKER:  "It  will  be  so  noted  on  the  journal." 


102  Procedure  in  State  Legislatures 

with  the  speaker's  ruling,  ^thus  a  clever  speaker  can  frequently 
avoid  a  direct  vote  upon  a  measure,  which  the  organization  wishes 
to  kill,  by  skilful  rulings  on  incidental  motions  or  on  points  of  order. 
Furthermore, 4>y  choosing  the  time  at  which  to  "hand  down"  for 
consideration  matters  which  do  not  appear  on  the  calendar,  the 
speaker  may  secure  the  success  of  measures  which  would  doubtless 
fail  were  the  house  warned  beforehand.  A  prominent  instance  of 
the  use  of  this  means  to  defeat  a  measure  occurred  in  the  New  York 
Assembly  of  1912  when  the  speaker  refused  to  hand  down  a  resolu- 
tion from  the  Senate  requesting  the  return  of  a  bill  in  order  that  a 
beneficial  amendment  might  be  incorporated.  Through  the  action 
of  the  speaker  the  bill  became  law  without  the  house  having  oppor- 
tunity to  act  upon  the  amendment  desired  by  the  Senate  and  fa- 
thered by  the  Civil  Service  Commission.21  Qttie  power  to  appoint 
steering  committees  materially  increases  the  centralization  of  con- 
trol in  the  hands  of  the  speaker.  He  may  be  ex  officio  chairman  of 
this  committee,  as  in  New  York  where  he  reports  the  daily  program. 
The  situation  sometimes  arising  when  the  president  of  the 
senate  is  not  a  member  of  the  majority  party  emphasizes  the  par- 
tisan nature  of  the  presiding  officer's  position.  The  article  in  the 
Constitution  of  New  York  which  empowers  the  president  pro  tern 
to  act  when  the  lieutenant-governor  "  shall  refuse  to  act  as  presi- 
dent" was  inserted  because  of  an  experience  in  which  the  lieutenant- 
governor  refused  to  put  the  question  on  seating  a  member.  Only 
after  much  disorder  did  the  president  pro  tern  succeed  in  putting 
the  question  and  was  sustained  by  the  majority.22  At  the  1915 
session  of  the  Illinois  Senate  the  lieutenant-governor  aided  and 
abetted  a  filibuster  by  refusing  to  recognize  members  other  than 
those  of  the  obstructing  party  and  by  refusal  to  hear  demands  of 
the  majority  for  roll  calls.23 

THE  FLOOR  LEADER 

The  degree  to  which  whatever  guidance  may  exist  is  entrusted 
to  the  speaker  is  witnessed  by  the  small  place  generally  held  by  the 
recognized  floor  leader.  Indeed,  many  legislatures  do  not  recog- 
nize a  floor  leader  other  than  informally.  The  chairman  of  a  prom- 

21  Report  of  Committee  of  Citizens'  Union,  1912. 

22  For  full  account  see  Senate  Journal,  February  5,  1894. 

23  See  Illinois  Senate  Debates  for  March  11,  1915. 


Legislative  Leadership  103 

inent  committee,  such  as  judiciary  or  appropriations,  may  be  the 
tacit  leader,  but  his  position  depends  largely  upon  the  man,  and  he 
may  see  his  leadership  settle  upon  someone  else  with  a  stronger 
grasp  of  affairs.  Occasionally  the  caucus  will  appoint  a  leader, 
although  it  may  simply  recognize  the  caucus  chairman  as  such.24 
But  motions  to  establish  a  floor  leader  are  infrequent.  In  Massa- 
chusetts the  chairmen  of  the  three  most  prominent  committees  are 
recognized  by  having  special  seats  assigned  to  them  by  the  rules, 
and  one  of  the  number,  the  chairman  of  the  rules  committee,  is 
supposed  to  be  the  speaker's  spokesman. 

In  any  case  the  rank  and  file  of  members  follow  instinctively 
a  few  prominent  men  who  hold  chairmanships  of  important  com- 
mittees. They  are  the  men  who  are  most  frequently  granted  unan- 
imous consent  to  advance  their  measures  out  of  order.  The  obscure 
member  rarely  asks  for  it,  perhaps-  because  it  is  difficult  for  him  to 
secure  it.  At  least  the  most  numerous  instances  of  refusal  follow 
requests  by  the  rank  and  file.  The  point  to  be  emphasized  is  that 
the  men  who  direct  the  course  of  the  deliberations  receive  but 
occasional  and  slight  recognition  from  the  rules  and  entirely  escape 
public  responsibility  for  the  failures  of  the  legislature. 

New  York  is  one  state  in  which  the  floor  leader  is  coming  into 
a  recognized  position  of  power.  Since  1915  the  leaders  of  both 
parties  have  received  the  endorsement  of  law  by  acts  appropriating 
money  for  their  clerical  and  stenographic  expenses.25  At  that  ses- 
sion the  Senate  caucus  of  the  majority  party,  although  the  Senate 
is  a  small  body  of  fifty-one  members,  early  in  March  named  a  com- 
mittee of  seven  to  shape  party  policy  without  the  action  of  the 
caucus.  Four  days  later  the  chairman  of  this  committee  received 
authorization  from  the  caucus  to  appoint  sub-committees  to  pre- 
pare all  important  measures  for  final  passage.26  He  was  likewise 
the  president  pro  tern  of  the  Senate,  chairman  of  the  rules  com- 
mittee which  reported  special  orders  at  any  time,  ex  officio  member 
of  the  three  leading  committees,  and  possessed  of  the  power  to  refer 
to  the  finance  committee,  of  which  he  was  a  member,  any  money 
bill  reported  from  another  committee.  It  will  be  seen  that,  as  far 
as  the  Senate  was  concerned,  the  majority  leader  was  made  dictator 

24  For  example,  Kansas,  Oklahoma  and  New  Jersey. 

25  For  example,  Chap.  726,  Laws  of  1915,  granted  the  leaders  each  $2500 
expense  money. 

26  New  York  Times,  March  14,  17,  1915. 


104  Procedure  in  Stale  Legislatures 

and  the  standing  committees  were  virtually  superseded  by  the 
small  caucus  sub-committees  of  his  choosing.27 

The  majority  leader  of  the  lower  house  of  Xew  York  also  holds 
a  well  defined  position  sufficiently  strong  for  him  to  take  issue  on 
occasion  with  the  speaker.  In  the  1915  session  he  frankly  accepted 
responsibility  for  the  party's  record,  and  in  asking  the  caucus  for  a 
committee  to  advise  and  assist  him  in  examining  legislation  which 
the  party  would  sponsor,  set  forth  his  policy  thus : 

As  majority  leader  in  the  Assembly  it  will  be  my  best'effort  aa'far'as  possible 
to  carry  out  the  general  principles  of  cooperation;  to  represent  the  sentiment  of 
the  majority  of  the  Republicans  in  this  legislature  as  expressed  in  conference, 
and  to  obtain  such  advice  as  may  be  gained  from  the  speaker  and  from  the  other 
Republican  members,  whose  suggestions  I  shall  not  only  gladly  receive,  but  grate- 
fully solicit. 

This  is  as  near  as  any  legislature  has  come  to  developing  responsible 
leadership.  The  newspapers  followed  the  actions  of  the  leaders 
closely  and  their  movements  were  given  wide  publicity.  To  this 
extent  only  were  they  as  leaders  placed  under  any  liability  to  the 
people  at  large. 

EXECUTIVE  LEADERSHIP 

The  legislatures  have  been  even  slower  to  grant  the  executive 
the  function  of  leadership  than  to  raise  up  responsible  leaders  among 
themselves,  yet  in  many  respects  the  governor  is  well  fitted  to  lead. 
More  than  any  member  he  represents  the  state  as  a  whole;  his  out- 
look is  state  wide,  and  the  popular  mind  is  fast  placing  upon  him 
accountability  for  the  fulfilment  of  party  pledges.  Of  late  several 
governors  have  undertaken  to  maintain  themselves  as  the  recog- 
nized party  leaders,  but  with  varying  degrees  of  success,  and  a 
reaction  seems  to  be  setting  in  against  " executive  usurpation."28 

27  The  Senate  of  1915  went  further  than  usual  in  consolidating  control  in  a 
leader,  due  probably  to  the  presence  of  an  obstructive  minority.  The  majority 
party  had  just  come  into  power  and  by  a  series  of  ripper  bills  were  trying  to 
restore  their  control  over  government  officers.  For  this  reason  the  majority  were 
willing  to  go  far  in  sacrificing  individuality  to  organization. 

'•For  example  Governor  Cox  of  Ohio  was  defeated  by  a  platform  which 
deprecated  the  governor's  assumption  of  leadership  in  legislation.  At  the  1915 
session  Governor  Willis  carried  out  his  promises  of  hands  off  and  the  legislature 
drifted.  In  this  connection  see  article  by  J.  W.  Garner  "Executive  Participation 
in  Legislation  as  a  Means  of  Increasing  Legislative  Efficiency,"  Proceedings 
American  Political  Science  Association  1913-14.  References  to  numerous  other 
articles  on  the  subject  are  there  given. 


Legislative  Leadership  105 

Formal  attempts  of  the  executive  to  establish  himself  as  leader  of 
the  legislature  have  usually  failed,  and  he  has  had  to  trust  himself 
to  the  power  of  his  personality  and  the  share  in  legislation  granted 
him  by  the  constitution.  Some  have  not  hesitated  to  use  the  pat- 
ronage freely  for  this  purpose,  but  regardless  of  how  praiseworthy 
it  may  have  been  in  special  cases,  the  considerations  which  should 
control  executive  appointments  are  subverted.29 

A  rule  adopted  in  the  Illinois  House  of  1913  has  been  widely 
discussed  in  this  connection.  The  rule  gave  precedence  to  adminis- 
tration measures  over  everything  except  appropriation  bills,  and 
Tuesdays  were  set  apart  for  their  special  consideration  in  the  com- 
mittee of  the  whole.  The  purpose  as  expressed  by  the  author  was 
to  impose  upon  the  governor  an  obligation  for  a  legislative  program 
and  to  make  for  party  responsibility  and  party  government.30  Yet 
the  rule  never  worked  and  was  not  continued  at  the  next  session  of 
the  legislature.  In  the  opinion  of  the  author  it  was  not  given  a  fair 
trial  and  failed  because  of  the  members'  jealousy  of  executive  power, 
because  of  the  influence  of  precedent  on  account  of  which  the  House 
could  not  adjust  itself  to  the  new  arrangement,  and  because  of  a 
general  disregard  for  all  rules  specially  marked  in  a  session  under 
the  direction  of  an  inexperienced  speaker.  At  the  subsequent  ses- 
sion the  majority  in  the  House  were  of  a  political  faith  opposed  to 
the  governor,  and  personal  antagonism  as  well  as  political  con- 
siderations caused  the  rule  to  be  dropped.  The  point  to  be  made 
here  is  that  such  a  rule  is  not  apt  to  be  given  a  fair  trial  under  present 
conditions.  For  one  thing,  members  feel  that  it  is  not  in  con- 
formity with  the  spirit  of  the  constitution.  Anxious  to  secure 
passage  of  measures  in  which  they  were  interested  and  jealous  of 
their  prerogative,  the  Illinois  House  felt  that  the  governor  wished 
to  monopolize  the  time  of  the  body.  The  essential  bond  of  sym- 
pathy was  lacking  and  the  relation  seemed  to  involve  unwelcome 
subordination  on  the  part  of  the  House. 

Indeed  any  effort  on  the  part  of  the  executive  to  direct  legisla- 
tion calls  out  opposition  from  the  legislative  bodies  in  which  the 
governor  is  apt  to  be  worsted.  At  a  recent  session  of  the  Pennsyl- 

2>  For  the  governor's  legal  powers  in  legislation  see  J.  M.  Mathews,  "Prin- 
ciples of  American  State  Administration,"  Chap.  III. 

30  See  article  by  Morton  D.  Hull,  American  Political  Science  Review,  May, 
1913. 


106  Procedure  in  State  Legislatures 

vania  Legislature  a  joint  committee  was  appointed  to  confer  with 
the  governor  upon  certain  important  reform  measures  for  the  passage 
of  which  the  governor  had  assumed  personal  responsibility  in  his 
campaign.  On  its  face  the  action  of  the  legislature  indicated  a 
recognition  of  the  governor's  leadership  and  a  desire  to  cooperate 
with  him.  In  reality  its  purpose  was  to  take  charge  of  the  governor 
in  order  that  certain  legislation  might  be  drafted  in  accordance  with 
the  wishes  of  the  organization.  The  Senate  created  a  committee  on 
executive  appointments  to  deal  exclusively  with  the  governor's 
nominations,  and  it  is  significant  that  all  the  Senate  members  of  the 
joint  committee  to  confer  with  the  governor  had  places  upon  this 
committee.  Thereafter  he  was  kept  in  line  by  threats  to  refuse  con- 
currence in  his  appointments.  At  the  session  of  the  same  year,  the 
New  York  Senate  similarly  prepared  itself  against  possible  execu- 
tive encroachments  by  a  new  rule  that  all  executive  appointments 
should  be  referred  to  the  finance  committee,  already  the  all  power- 
ful Senate  committee.  Attempts  to  control  appointments  in  this 
manner  are  as  contrary  to  the  purpose  of  the  constitution  as  are  the 
efforts  of  the  governor  to  coerce  by  patronage  and  veto.  Through 
the  transference  of  the  substance  of  the  appointing  power  to  mem- 
bers of  the  legislative  branch  the  principle  that  executive  appointees 
should  owe  their  places  to  the  governor  is  perverted.  The  necessity 
of  confirmation  by  the  Senate  has  always  been  viewed  as  rightfully 
no  more  than  a  check  upon  flagrant  abuse  of  executive  power  and 
in  no  wise  to  control  it. 

In  at' least  two  states  opposition  to  the  use  of  the  patronage 
has  found  expression  in  the  statute  law.  A  member  who  promises 
the  governor  to  give  his  vote  or  influence  for  or  against  a  bill  in  con- 
sideration that  the  governor  approve  or  veto  any  measure  or  make 
a  certain  appointment  is  made  guilty  of  a  felony.31 

Some  degree  of  coordination  is  maintained  by  reports  of  admin- 
istrative heads  submitted  to  the  legislature,  and  by  appearance  of 
administrative  officials  before  legislative  committees.  Here  the  use 
of  the  committee  of  the  whole  might  be  extended  with  profit,  as  is 
being  done  in  Wisconsin,  to  bring  executive  officers  before  the 
entire  body.  Indeed,  it  should  be  the  right  of  the  head  of  each 
department  to  be  heard.  Yet  the  value  even  of  legislative  docu- 

31  North  Dakota,  Compiled  Laws  (1913),  par.  9331,  9332.  Utah,  Laws  of 
Utah  (1907),  par.  4099,  4100. 


Legislative  Leadership  107 

ments  containing  reports  of  departments  or  commissions  is  often 
destroyed  through  delay  in  publication.  Too  often  they  are  not 
available  until  late  in  the  session.  If  such  reports  are  to  be  made 
the  basis  of  legislation  they  should  be  in  the  hands  of  members  a 
month  before  the  session  convenes,  nevertheless  their  publication 
is  sometimes  delayed  until  after  adjournment.  In  this  connection 
it  would  be  well  to  make  sure  that  sufficient  time  can  elapse  before 
the  close  of  the  official  year  and  the  convening  of  the  legislature  to 
prepare  reports  that  can  be  of  service  to  the  legislators  early  in  the 
session.  In  Kansas  and  South  Dakota  the  official  year  closes  June 
30,  and  reports  of  departments  are  always  available  at  the  opening 
of  the  legislature.  Where  the  year  does  not  close  until  November 
or  December,  as  in  Missouri,  Ohio  and  Pennsylvania,  official  docu- 
ments may  be  long  delayed.  Yet  Massachusetts  contrives  to  get 
important  reports  into  the  hands  of  the  legislature  early  in  January 
although  her  year  does  not  end  until  November  30. 

LEGISLATIVE  RECORDS 

There  remains  a  word  to  be  said  concerning  the  means  by 
which  the  work  of  the  legislature  is  made  public,  for  it  is  important 
that  the  people  be  readily  informed  of  what  is  going  on  in  time  to 
urge  or  oppose  pending  measures.  The  publication  of  legislative 
bulletins  or  bill  indexes  giving  the  status  of  all  matters  can  do  much 
towards  clearing  up  committee  evils  as  well  as  enabling  the  public 
to  follow  the  course  of  measures  easily.  At  the  sessions  of  1915,  bul- 
letins giving  the  history  of  bills  with  their  status  at  the  time  were 
issued  at  more  or  less  regular  intervals  in  thirteen  states.32  These 
were  cumulative  and  with  rare  exceptions  were  issued  weekly.33 
They  were  available  to  the  public  either  gratuitously  or  upon  pay- 
ment of  a  small  fee.  California  went  so  far  as  to  put  out  a  daily 
supplement.  A  few  states  have  so  organized  committee  procedure 
as  to  be  able  to  announce  bulletins  of  committee  hearings.34  Local 
newspapers  in  that  case  announce  the  more  important  hearings  and 
in  Massachusetts  certain  newspapers  publish  a  daily  program  of 

32  California,  Connecticut,  Illinois,  Iowa,  Louisiana,  Minnesota,  Missouri, 
Nebraska,  New  York,  Pennsylvania,  Texas,  Washington  and  Wisconsin.     In 
Indiana,  Michigan,  New  Jersey  and  South  Dakota  the  legislative  libraries  kept 
a  card  index  open  to  the  public. 

33  Connecticut,  Nebraska  and  Texas  did  not  issue  weekly  indexes. 

34  Weekly  in  New  York  and  Wisconsin;  semi-weekly  in  Massachusetts 


108  Procedure  in  State  Legislatures 

all.  Additional  light  is  thrown  upon  the  legislature's  activities  by 
the  circulation  of  copies  of  all  bills,  resolutions,  et  cetera.  In  at 
least  four  states  copies  of  all  measures  will  be  mailed  to  applicants 
either  gratuitously  or  under  a  nominal  fee.35  Information  as  to 
what  is  taking  place  in  the  legislature  need  no  longer  be  the  monop- 
oly of  a  favored  few,  and  the  old  claim  that  a  paid  lobby  was  neces- 
sary if  persons  interested  were  to  know  the  progress  of  business  no 
longer  stands. 

Unfortunately  for  the  public  good  the  legislatures  keep  but 
incomplete  records  of  their  proceedings.  As  a  consequence  of  Par- 
liament's struggle  with  the  king,  the  journals,  which  had  come  to 
include  notes  on  speeches,  became  merely  a  record  of  things  done 
and  not  of  things  said.  The  Commons  resented  the  king's  calling 
for  reports  of  their  debates  and  checked  the  note-taking  propensities 
of  the  clerk.36  With  three  exceptions  the  meager  record  of  the  jour- 
nal is  all  we  have  in  our  state  legislatures  today.  Maine  and  Penn- 
sylvania have  for  some  years  published  a  stenographic  record  of  all 
proceedings  including  votes,  and  in  1915  Illinois  began  the  publica- 
tion of  verbatim  reports  of  debates.  These  examples  could  well  be 
followed  by  all  states.  From  such  records  the  people  can  be  more 
fully  informed  why  the  legislature  passed  some  bills  and  why  it 
refused  to  pass  others.  The  dignity  of  the  session,  moreover,  would 
be  enhanced  if  members  realized  that  everything  which  took  place 
on  the  floor  would  be  permanently  recorded.37 

The  journal,  being  the  only  record  of  which  the  courts  will 
take  cognizance,  if  indeed  they  go  back  that  far,  should  be  inspected 
with  care  in  order  that  all  errors  may  be  eliminated.  The  impor- 
tance of  the  printed  journal  is  increased  when  it  is  remembered  that 

35  In  New  Mexico  they  are  free  to  those  placed  on  the  mailing  list  by  members. 
In  New  Jersey  and  Virginia  upon  payment  of  ten  dollars;  in  Wisconsin  twelve 
dollars.    They  are  generally  free  to  the  press. 

36  Sir  Courtenay  Ilbert  in  the  Introduction  to  Redlich,  "The  Procedure  of 
the  House  of  Commons,"  pp.  ix,  x. 

37  New  York  published  a  record  for  two  years,  1888  and  1889,  but  the  expense 
was  felt  to  be  too  great  to  continue  it.    The  constitution  submitted  in  1915  con- 
tained a  provision  that  full  reports  be  published,  which  had  been  strongly  advo- 
cated before  the  convention  by  Mr.  Root.     (See  Record  of  the  Convention,  p. 
3750.)    A  similar  proposal  failed  the  same  year  in  the  Michigan  Legislature  (H.  J. 
p.  418  it  had  passed  the  Senate).    Members  do  not  seem  anxious  to  perpetuate 
the  memory  of  their  legislative  activities. 


Legislative  Leadership  109 

the  reading  of  the  manuscript  journal  is  universally  dispensed  with, 
and  the  printed  copies  are  the  only  check  available  to  members. 
With  the  exception  of  a  few  states,  chiefly  in  the  South,  copies  of 
the  journal  appear  on  the  desks  of  the  members  the  next  morning. 
Sometimes  as  in  New  York  and  Pennsylvania,  the  printed  copies  do 
not  reach  the  members  regularly  and  the  journal  is  approved  offi- 
cially without  examination  by  anyone.38  Near  the  end  of  the  ses- 
sion, when  adjournment  comes  late  at  night,  it  may  be  impossible 
to  have  copies  on  the  desks  promptly  the  next  morning  but  official 
approval  should  be  withheld  until  members  have  been  given  a 
chance  to  examine  them.  About  a  dozen  states  employ  a  standing 
committee  to  report  upon  the  correctness  of  the  journal.  But  like 
committees  on  engrossment  and  enrollment  this  committee  is  not 
apt  to  expend  much  effort  in  inspecting  the  journal,  although  even 
most  conscientious  examination  by  three  men  may  overlook  errors 
which  they  can  hardly  be  supposed  to  recognize.  The  legislature 
of  Wisconsin  substitutes  for  the  old  order,  "  Reading  and  Approval 
of  the  Journal"  the  new  order,  "  Correction  of  the  Journal,"  and  the 
Minnesota  Senate  has  gone  one  better  by  making  the  correction  of 
the  journal  in  order  at  any  time  throughout  the  next  day's  session. 
In  this  way  every  member  has  full  opportunity  to  know  that  actions 
in  which  he  is  interested  have  been  correctly  spread  upon  the  record. 

38  In  New  York  as  a  matter  of  fact  the  clerical  force  never  has  the  matter 
ready  for  the  printer  on  time  and  only  a  small  part  of  the  journal  ever  gets  on  the 
desks  of  members,  yet  the  reading  of  ( the  manuscript  is  always  dispensed  with. 
(Reply  to  Nebraska  Questionnaire,  1913.) 


INDEX 


size,  39;  "pickling,"  53:  procedure, 
46,  47,  107;  purpose,  36  reports.  47, 

95,  97,  99;  "rules,"  57,  91;  schedules, 
41,  44,  45;  sifting,  56,  58,  77;  stand- 
ing, 36,  43;  steering,  56,  57,  99,  102. 

Committee  of  the  whole:  action,  37; 

use,  70,  94. 

Congestion:  New  York,  61;  causes,  98. 
Connecticut,  provisions,  7,  33,  34,  38, 

43,  49,  50,  65,  69,  72,  79,  88,  89,  92, 

96,  107. 

Bills:  appropriation,    91,   95;   circula-      Constitutional   provisions:  fulfillment, 
tion  of,  108;  committee  action  on,          19;  mandatory  and  directory,  9. 
52;  debate,   57;  duplicate,   30;  en-      Contempt:  definition,  87;  punishment 
rolled  and  engrossed,  87,  90;  hear-          for,  4. 

ings,  46;  introduction,  26-35,  53,  99;      Courts,  jurisdiction  over  legislature,  6, 
negative  reports  on,  55,  57;  on  calen- 
dar, 94;  out  of  order,  103;  passage, 
55,  63-90,  84,  92,  96;  printing,  42,      Debate:  obstruction,  72;  time  for,  66, 


Alabama,  provisions,  8,  33,  46,  64,  67, 

69,  75,  82,  92,  94,  96. 
Amendments:  appearance  on  calendar, 

95;  conferences  on,  51;  examination, 

79;  final  passage,  80;  introduction,  69; 

modifying,  83;  printing,  81;  records, 

94;  roll-call,  82. 
Arizona,  provisions,  20,  33,  42,  71,  92, 

94,  95. 
Arkansas,  provisions,  88,  91. 


64,  77;  private,  28,  33,  76,  95;  read- 


),  94. 


ings,  65;  reference,  37,  42;  titles,  11,      Delaware,  provisions,  32,  38,  52,  72,  76. 


35,  94. 
Boss,  function,  100. 

Calendar:  advantages,  77;  congestion, 

56,  92,  96;  form  91-97;  make-up,  43, 

58,  95. 
California,  provisions  in,  7,  15,  20,r30, 

31,  45,  46,  51,  52,  58,  81,  89,  92,*94, 

107. 
Cloture:  New  York,   72;   precedents, 

74. 


Elections:  contested,    21;   jurisdiction 

over,  3. 
Employes:  limitation,  15, 17;  selection, 

23,  24. 
Executive   leadership,    opposition   to, 

105. 

Floor  leader:  New  York,  103;  recogni- 


Florida,  provisions,  33,  47,  86. 
Gavel  rule,  power,  101. 


Colorado,  provisions  in,  18,  52,F79,  81, 

82. 
Committee  chairmen:  leadership,  103; 

powers,  39. 

Committees:  appointment,  37,  38;  at- 
tendance   of    members,     47;    bills 

introduced  by,   29;   chairman,    39; 

conference,  51;  discharge  of,  52-56; 

duplication,  40;  employes,  49;  joint, 

43,   49,   50,   55;  meetings,   40,   44; 

minority  members,  38;  number  and      Idaho,  provisions,  64,  81,  88,  98. 

[HO] 


Georgia,  provisions,  12,  31,  32,  33,  40, 

64,  65,  73,  91. 

General  orders,  bills  placed  on,  96. 
Governor,  leadership  by,  104. 

Houses,  organization,  20-25. 


Index 


111 


Illinois,  provisions,  16,  18,  29,  30,  31, 
35,  38,  39,  42,  46,  48,  51,  53,  56,  57, 
58,  64,  66,  69,  70,  71,  73,  74,  75,  81, 
92,  94,  98,  102,  105,  107,  108. 

Iowa,  provisions,  7,  17,  20,  23,  32,  40, 
46,  59,  69,  88,  94,  107. 

Indiana,  provisions,  7,  16,  20,  23,  32, 
51,  52,  55,  57,  63,  81,  82,  91,  99,  107. 

Inquiry,  order  of,  27. 

Joint  committees,  see  Committees. 

Journals:  accuracy,  109;  committee 
votes  recorded  on,  48;  English  prece- 
dents, 7;  evidence,  7,  8,  63;  integrity, 
11;  records,  97,  108. 

Judicial  review,  parliamentary  proce- 
dure not  subject  to,  6,  12. 

Kansas,  provisions,  3,  29,  38,  40,  42, 
56,  57,  58,  69,  70,  74,  76,  94,  96,  107. 

Kentucky,  provisions,  7,  12,  32,  40,  46, 
48,  52,  67,  71,  81,  89. 

Kilburn  v.  Thompson,  decision  in,  4. 

Leadership,  legislative,  91-109. 

Legislation:  evils  of  local,  14;  validity, 
7. 

Legislative  reference  bureaus,  service, 
30. 

Legislature:  confusion  in,  56;  delibera- 
tion in,  36;  powers  in  procedure,  1-19. 

Louisiana,  provisions,  32,  33,  44,  67, 
69,  82,  107. 

Maine,  provisions,  32,  33,  43,  49,  51, 
64,  65,  66,  71,  79,  89,  108. 

Majority,  powers,  93. 

Maryland,  provisions,  20,  94,  96. 

Massachusetts,  provisions,  3,  16,  22, 
24,  27,  28,  31,  33,  41,  43,  44,  46,  49, 
50,  51,  54,  56,  58,  66,  67,  70,  72,  74, 
79,  82,  86,  89,  94,  96,  97,  99,  103,  107. 

Measures,  see  Bills. 

Members:  bills  introduced  by,  29,  31; 
expulsion,  5;  inexperience,  100;  in- 
formation for,  94;  qualifications,  3; 
recognition,  102;  reference  by,  43, 


Michigan,  provisions,  17,  30,  40,  53,  57, 

63,  64,  65,  70,  74,  77,  88,  94,  107. 
Minnesota,  provisions,  11,  13,  20,  33, 

45,  46,  52,  64,  65,  76,  88,  92,  94,  107, 

109. 

Minority,  protection,  93. 
Mississippi,  provisions,  7,  38,  64,  82, 

107. 
Missouri,  provisions,  12,  23,  29,  33,  42, 

52,  55,  59,  81,  82,  93,  107. 
Montana,  provisions,  17,  20,  22,  58,  70, 

91. 

Nebraska,  provisions,  18,  20,  29,  30, 
32,  37,  38,  59,  70,  81,  91,  92,  107. 

Nevada,  provisions,  7,  88,  91. 

New  Hampshire,  provisions,  21,  32,  33, 
88,  89. 

New  Jersey,  provisions,  7,  16,  32,  33, 
35,  49,  52,  65,  79,  88,  92,  94, 107, 108, 
109. 

New  Mexico,  provisions,  67,  89,  108. 

New  York,  provisions,  5,  15,  21,  28,  32, 
35,  36,  38,  45,  46,  47,  48,  51,  53,  57, 
58,  59,  63,  64,  66,  68,  70,  72,  74,  77, 
80,  81,  84,  86,  88,  89,  93,  94,  95,  96, 
97,  99,  102,  103,  106,  107,  108. 

North  Carolina,  provisions,  32,  33,  41, 
52,  64,  88,  91,  98. 

North  Dakota,  provisions,  20,  52,  69, 
76,  88,  89. 

Ohio,  provisions,  12,  20,  24,  32,  38,  41, 
42,  43,  47,  48,  52,  57,  68,  69,  76,  81, 
84,  86,  88,  93,  97,  104. 

Oklahoma,  provisions,  33,  38,  51,  67, 
70,  92,  94. 

Oregon,  provisions,  30. 

Organization,  validity  of  statutes  regu- 
lating, 24. 

Parliament:  petitions,  34;  precedents 
from,  21,  95;  private  bills  in,  34. 

Patronage,  use,  106. 

Pennsylvania,  provisions,  14,  24,  26, 
27,  29,  33,  37,  39,  40,  46,  51,  53,  55, 


112  Index 

58,  64,  65,  66,  70,  74,  75,  81,  82,  84,  South  Dakota,  provisions,  7, 16,  45,  57, 

88,  89,  92,  106,  107,  108,  109.  62,  69,  89,  91,  107. 

Petition,  introduction  by,  33.  Speaker,  appointments  by,  37,  38,  39; 

Powers:  inherent,     defined,     2;    over  leadership,  100;  power,  91,  94;  refer- 

elections,  22.  ence  by,  33,  43. 

Procedure:  judicial  review,  6;  manda-  Speeches,  hostility  to,  36;  time  limits 

tory  and  directory  provisions,  9,  13.  on,  74. 

Prerogatives,  exclusive,  3,  4,  6,  12,  17.  Standing  committee,  see  Committees. 

Steering  committee,  see  Committees. 

Quorum:  counting,  86;  definition,  63.  Stockdale  v.  Hansard,  decision  in,  4. 

Tennessee,  provisions,  63. 

Readings:  debate  and,  69;  in  full,  68;  TexaS)  provisions,  6,  20,  33,  63,  107. 

occasion  for,  94;  required,  65,  99; 

suspension,  76,  81.  Utah,  provisions,  89. 
Records,  advantages,  108;  legislative, 

1°7-  Vermont,  provisions,  16,  38,  41,  42,  44, 

Rhode  Island,  provisions,  33,  38,  39,  50,  55,  63,  72,  82,  83,  88,  89,  94. 

41,  65,  88.  Virginia,  provisions,  27,  33,  38,  43,  46, 

Roll,  make-up,  20.  64,  68,  72,  82,  86,  88,  108. 
— —  call:  bills  introduced  by,  32;  on 

final  passage,  84;  short,  14,  47.  Washington,  provisions,  29,  31,  58,  74, 

Rules:  adoption,  25;  New  York,  59;  7^  gg,  91,  107. 

suspension,  75;  validity  of  joint,  13.  West  Virginia,  provisions,  33,  39,  46, 

66,  68,  70,  76,  82,  88. 

Senates,  committee  appointments,  38.  Wisconsin,  provisions,  24,  38,  39,  41, 

Session,  closing  days,  97-100.  46,  47,  50,  71,  79,  80,  84,  86,  88,  89, 

South  Carolina,  provisions,  33,  34,  55,  95,  96,  99,  106,  107,  108,  109. 

89.  Wyoming,  provisions,  72. 


